[Federal Register Volume 60, Number 143 (Wednesday, July 26, 1995)] [Notices] [Pages 38353-38354] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-18334] ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES Public Health Service Action Related to Emergency Research Activity agency: Public Health Service, HHS. action: Notice. ----------------------------------------------------------------------- summary: The Public Health Service is announcing an action related to the applicability of the Title 45 CFR Part 46 (protection of human subjects) requirement for obtaining and documenting informed consent for a specific research activity. The purpose of this action is to invoke 45 CFR 46.101(i) related to an NIH funded research project: ``National Acute Brain Injury Study: Hypothermia.'' This important and necessary research needs to be carried out in human subjects who require 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. for further information contact: F. William Dommel, Jr., J.D., Senior Policy Advisor, Office for Protection from Research Risks, 6100 Executive Boulevard, Suite 3B01J, National Institutes of Health, MSC 7507, Rockville, MD 20892-7507. Telephone (301) 496--7005 ext. 203 (not a toll-free number). SUPPLEMENTARY INFORMATION: Waiver Pursuant to Section 46.101(i) of Title 45 of the Code of Federal Regulations, the Secretary of Health and Human Services, has waived the general requirements for informed consent at 45 CFR 46.116 and 46.117 for the specific research activity known as the ``National Acute Brain Injury Study: Hypothermia'' and funded by the National Institutes of Health (NIH) grant number R01 NS 32786 under the following strictly limited circumstances: In the course of the conduct of the research funded under NIH grant number R01 NS 32786, human research subjects may be included without seeking informed consent as otherwise required by 45 CFR 46.116 and 46.117 if the proposed research involves the study of activities which would be carried out on persons who are in need of emergency treatment and the IRB(s) responsible for the review, approval, and continuing review of the research approve(s) that research without requiring that legally effective informed consent be obtained and the IRB(s) find(s), document(s), and report(s) to the Office for Protection from Research Risks (OPRR), NIH, that the research is approved in the absence of a requirement for obtaining informed consent for the following reasons: (i) The opportunity for the subjects to participate in the research is in the health interest of the subjects; (ii) The waiver of consent will not adversely affect the rights and welfare of the subjects; (iii) Additional appropriate protections of the rights and welfare of the subjects will be [[Page 38354]] provided, including , but not limited to, consultation (which may include consultation carried out by the IRB itself) with representatives of the communities from which the subjects will be drawn; (iv) The research could not practicably be carried out without the waiver; and (v) Whenever appropriate, the subjects will be provided with additional pertinent information after participation. Background The NIH, through its National Institute of Neurological Disorders and Stroke, has funded a research project entitled, ``National Acute Brain Injury Study: Hypothermia,'' which is a study of the treatment with hypothermia of severe head injury. This important and necessary research needs to be carried out in human subjects who, because of their injuries, are not conscious and cannot, therefore, consent to their participation. In some instances, but not always, consent from a legally authorized representative can be sought and obtained. Nevertheless, the unavailability of such representatives in many cases is impeding the progress of the research to such an extent, that the NIH determined that the research cannot go forward in the context of the current Department of Health and Human Services (HHS) regulations for the protection of human subjects (45 CFR Part 46) unless certain informed consent requirements of those regulations are waived by the Secretary, HHS in accord with the waiver provisions provided at 45 CFR 46.101(i). A request for consideration of such a waiver was received from the Institutional Review Board, University of Texas Health Science Center, Houston, on July 12, 1995. Current HHS regulations permit IRBs acting in accord with an Assurance of Compliance with 45 CFR Part 46, to waive the requirement for obtaining informed consent under the following stringently applied conditions found at 45 CFR 46.116(d). The IRB must find and document that:The research involves no more than minimal risk to the subjects; The waiver * * * will not adversely affect the rights and welfare of the subjects; The research could not practicably be carried out without the waiver * * *; and, Whenever appropriate, the subjects will be provided with additional pertinent information after participation. However, the waiver of informed consent requirements now being authorized under Sec. 46.101(i) could not previously have been approved by an IRB, acting independently of the Sec. 46.101(i) waiver, because the risk involved in this emergency treatment activity is greater than minimal and therefore the ``minimal risk'' requirement for the exercise of an IRB waiver of informed consent could not be met. NIH notes that testimonies to this effect, in regard to similar research activities, were delivered to (i) the Subcommittee on Regulation, Business Opportunities, and Technology, Committee on Small Business, U.S. House of Representatives (Washington, DC, May 23, 1994); (ii) the Coalition Conference of Acute Resuscitation Researchers (Washington, DC, October 25, 1994); (iii) the meeting of Applied Research Ethics National Association (Boston, MA, October 30, 1994); (iv) the meeting of Public Responsibility in Medicine & Research (Boston, MA, November 1, 1994); and (v) the Food and Drug Administration/National Institutes of Health Public Forum on Informed Consent in Clinical Research Conducted in Emergency Circumstances (Rockville, MD, January 9-10, 1995). Therefore, the issue for decision by the Secretary was whether this particular research activity, involving greater than minimal risk to the subjects, should be permitted to go forward in the absence of legally effective informed consent. The decision is that under certain strictly limited circumstances such permission is appropriate. Periodic Review A periodic review of the implementation by IRBs of this waiver will be conducted by OPRR to determine its adequacy in meeting its intended need or if adjustments to the waiver might be necessary and appropriate. Dated: July 19, 1995. Philip R. Lee, Assistant Secretary for Health. [FR Doc. 95-18334 Filed 7-25-95; 8:45 am] BILLING CODE 4140-01-M