Enhancing patient choice is a central theme of medical ethics and law. Informed consent is the legal process used to promote patient autonomy; shared decision making is a widely promoted ethical approach. These processes may most usefully be seen as distinct in clinically and ethically important respects. The approach outlined in this article uses a model that arrays all medical decisions along 2 axes: risk and certainty. At the extremes of these continua, 4 decision types are produced, each of which constrains the principal actors in predictable ways. Shared decision making is most appropriate in situations of uncertainty, in which 2 or more clinically reasonable alternatives exist. When there is only 1 realistic choice, patient and physician may gather and exchange information; however, the patient cannot be empowered to make choices that do not exist. In contrast, informed consent does not require the presence of clinical choice; it is appropriate for all decisions of significant risk, even if there is only one option. When a clinical decision contains both risk and uncertainty, shared decision making and informed consent are both appropriate. For decisions of lower risk, consent should still be present, but it can be simple rather than informed. Clinicians may use this analysis as a guide to their own interactions with patients. In the continuing effort to provide patients with appropriate decisional authority over their own medical choices, shared decision making, informed consent, and simple consent each has a distinct role to play.
This guidance is intended to provide information to institutional review boards (IRBs), clinical investigators, and study sponsors about FDA's informed consent regulations. This guidance, when finalized, will supersede "A Guide to Informed Consent," issued in September 1998, by the Office of Health Affairs, FDA. To enhance human subject protection and reduce regulatory burden, the Department of Health and Human Services, Office for Human Research Protections and FDA have been actively working to harmonize the agencies' regulatory requirements and guidance for human subject research. This guidance document was developed as a part of these efforts.
FDA's informed consent requirements are set forth in FDA's regulations on Protection of Human Subjects (21 CFR part 50). These regulations apply to clinical investigations regulated by FDA. 2 The informed consent requirements in 21 CFR part 50 are not intended to preempt any applicable Federal, State or local laws that require additional information to be disclosed for informed consent to be legally effective. (21 CFR 50.25(c).) If the clinical investigation is conducted or supported by the Department of Health and Human Services (HHS) and involves an FDA-regulated product, then the study is subject to both 45 CFR part 46 and 21 CFR part 50, meaning that both sets of regulations must be followed. Where the regulations differ, the regulations that offer the greater protection to human subjects should be followed.
To many, the term informed consent is mistakenly viewed as synonymous with obtaining a subject's signature on the consent form. FDA believes that obtaining a subject's oral or written informed consent is only part of the consent process. Informed consent involves providing a potential subject with adequate information to allow for an informed decision about participation in the clinical investigation, facilitating the potential subject's comprehension of the information, providing adequate opportunity for the potential subject to ask questions and to consider whether to participate, obtaining the potential subject's voluntary agreement to participate, and continuing to provide information as the clinical investigation progresses or as the subject or situation requires. To be effective, the process must provide sufficient opportunity for the subject to consider whether to participate. (21 CFR 50.20.) FDA considers this to include allowing sufficient time for subjects to consider the information and providing time and opportunity for the subjects to ask questions and have those questions answered. The investigator (or other study staff who are conducting the informed consent interview) and the subject should exchange information and discuss the contents of the informed consent document. This process must occur under circumstances that minimize the possibility of coercion or undue influence. (21 CFR 50.20.)
The consent process begins with subject recruitment, and it includes advertising used to recruit subjects into the clinical trial. 3 Once a potential subject is identified, a person knowledgeable about the clinical investigation and capable of answering questions raised by the potential subject should conduct a consent interview.
The consent form must contain information to allow the subject to make an informed decision about participation in a clinical investigation (see section III, FDA Informed Consent Requirements and Discussion). 4 (21 CFR 50.20 and 21 CFR 50.25.) The consent form serves several purposes, including helping to ensure that the subject receives the required information, providing a "take home" reminder of the elements of the clinical investigation, providing contact information in case additional questions or concerns arise, and documenting the subject's voluntary agreement to participate.
The informed consent process often continues after the consent form is signed. Depending on the clinical investigation, additional information may need to be given to the subject, and the subject may need additional opportunities to ask questions and receive answers throughout the clinical investigation. (See section III.C.5, Providing Significant New Findings to Subjects, for a discussion of when findings developed during the clinical investigation must be communicated to subjects.)
For all FDA-regulated clinical investigations (except as provided in 21 CFR 50.23 and 50.24 5), legally effective informed consent must be obtained from the subject or the subject's legally authorized representative. Informed consent must meet the requirements of 21 CFR 50.20, and must include the basic information required by 21 CFR 50.25(a). If appropriate to the clinical investigation, one or more of the additionalelements of information at 21 CFR 50.25(b) must also be addressed. For "applicable clinical trials" initiated on or after March 7, 2012, an additional element of informed consent is required by 21 CFR 50.25(c). 6
Informed consent is required for participation in FDA-regulated clinical investigations except under limited circumstances as described in 21 CFR 50.23 (involving certain life-threatening situations, military operations, or public health emergencies) and 21 CFR 50.24 (involving emergency research 7). See 21 CFR 50.20. Nothing in FDA's informed consent regulations is intended to limit the authority of a physician to provide emergency medical care to the extent the physician is permitted to do so under applicable Federal, State, or local law (21 CFR 50.25(d)).
The conditions under which informed consent is sought and the relationship between the subject and the person obtaining consent must be carefully considered to minimize the possibility of coercion or undue influence (21 CFR 50.20). According to the Belmont Report, "Coercion occurs when an overt threat of harm is intentionally presented by one person to another in order to obtain compliance. Undue influence, by contrast, occurs through an offer of an excessive, unwarranted, inappropriate or improper reward or other overture in order to obtain compliance."
For example, when an employing party seeks to enroll employees in a clinical investigation sponsored or conducted by the employing party, the protocol should contain safeguards to ensure that participation is voluntary and that there is no undue influence by supervisors, peers, or others. Similarly, because of a potential conflict of interest and the nature of the physician-patient relationship, when the investigator is also the prospective subject's physician, the physician should be careful to ensure that the prospective subject understands that enrollment in the clinical investigation is voluntary and that a decision to forego enrollment will not adversely affect his/her medical care. The consent form should emphasize that an individual's participation is truly voluntary.
Note that coercion and undue influence may be situational. For example, in a clinical investigation involving the surgical insertion of an investigational device, waiting to obtain informed consent until the potential subject is in the preoperative area may fail to minimize the possibility of undue influence.
The information given to the subject, which could include information provided orally during the consent interview or written information in the consent form, must be in language understandable to the potential subject or legally authorized representative (21 CFR 50.20). "Understandable" means the information presented to potential subjects is in a language and at a level the subjects can comprehend (including an explanation of scientific and medical terms). In ensuring that information is understandable, it should be noted that more than one-third of U.S. adults, 77 million people, have basic or below basic health literacy. 10 Limited health literacy affects adults in all racial and ethnic groups. 11 In addition, more than one-half of U.S. adults have basic or below basic quantitative literacy 12 and are challenged by numerical presentations of health, risk, and benefit data.
The consent process may not include exculpatory language through which a subject is made to waive or appear to waive any of his or her legal rights, or release or appear to release the investigator, the sponsor, the institution, or its agents from liability for negligence (21 CFR 50.20). FDA considers exculpatory language to be language that has the general effect of freeing or appearing to free an individual or an entity from malpractice, negligence, blame, fault, or guilt. 2b1af7f3a8