Ethical Legal/Issues in Human Subject Research II

1. Ethical Legal/Issues in Human Subject Research II ISD II – Infectious Diseases Barbara Barrowman Andrew Latus March 7, 2003

2. Outline • Second of a two-part consideration of legal and ethical issues related to human subject research. • In the first session (during the GI course), we considered the following issues: • What is research? • Rationale for research ethics review • Ethical/legal/regulatory framework for human subject research in Canada

3. Outline (cont.) • We also identified a number of major ethical/legal issues in human subject research: 1. Scope of acceptable research 2. Conflicts of interest 3. Consent - informed, voluntary 4. Confidentiality, access to information 5. Children, mentally incompetent individuals 6. Justice in recruitment of subjects • Covered # 2 and 3 in the last session. • Today, we will cover the other issues, with an emphasis on #1 and 4.

4. The Tuskegee Syphilis Experiment • Clear example of ethically unacceptable research, at least by present standards • Some problems: • Lack of informed consent due to deception • Study was presented as treatment • Treatments for syphilis were available • Conflict of interest caused profound failure in duty to care • Injustice in selection of subject population • Unacceptable form of research • Clearly illustrates need for a focus on research ethics

5. Some History of Research Ethics • Early codes of medical ethics tended to treat research as part of overall code of medical ethics • Today, treated as a distinct area • Thomas Percival • 1803 - first code of medical ethics to include requirements concerning research? • The use of experimental techniques on patients should be “scrupulously and conscientiously governed by sound reason” and undertaken only after consulting with other physicians • No mention of seeking the consent of the subject

6. Paternalistic Research Ethics • “It is our duty and our right to perform an experiment on a man whenever it can save his life, cure him or gain him some personal benefit. … So, among the experiments that might be tried on man, those that can only harm are forbidden. Those that are innocent are permissible, and those that may do good are obligatory.” • 1865 - Claude Bernard, an influential French physiologist,

7. William Beaumont - Research Ethics Pioneer? • Some credit Beaumont with the “oldest … code” specifically focussed on human experimentation (1833): • “5. The voluntary consent of the subject is necessary… • “6. The experiment is to be discontinued when it causes distress to the subject… • 7. The project must be abandoned when the subject becomes dissatisfied.” • Some dispute about whether code actually existed.

8. Policy vs. Practice • Ironically, some of the earliest and clearest pronouncements on the importance of consent in medical research are to be found in early 20th century Germany • Vaccination trials without consent on poor and vulnerable people (abandoned children, prostitutes) led to research regulations in Prussia in 1900 • A 1931 directive from the German Reich Minister of the Interior forbids “innovative therapy” unless the “subject or his legal representative has unambiguously consented to the procedure in the light of relevant information provided in advance”

9. The Nuremberg Code • The modern era in research ethics begins with the Nuremberg Code (1947) • Produced as part of the “Doctors’ Trial,” part of the post-W.W.II war crimes tribunal • Response to research atrocities • Deliberate infection with malaria, smallpox, cholera • Sexual sterilization experiments • Cold temperature experiments

10. From the Nuremberg Code • “The voluntary consent of the human subject is absolutely essential.” • “This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice … and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be known to him the nature, duration and purpose of the experiment; the methods and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment.”

11. Not the End of Atrocities • Unfortunately, as already noted policy is one thing and practice another. Some examples: • Tuskegee Syphilis Experiment (1932-1972) • Willowbrook hepatitis vaccination experiments (1956-72) • CIA funded LSD Experiments in Montreal (1950s & 1960s) • Brooklyn Jewish Chronic Disease Hospital cancer study (1963) Note: all involved vulnerable participants

12. The Helsinki Declarations • 1964 – World Medical Associations Declaration of Helsinki ‘replaces’ the Nuremberg Code • Since revised in 1975, 1983, 1989, 1996 and 2000 • 2000 version is contained in handout • Less stringent on consent, allows for proxy consent • Most other national and international codes now share this approach

13. Some Major Ethical/Legal Issues in Medical Research • Scope of acceptable research • Conflicts of interest • Consent - informed, voluntary • Confidentiality, access to information • Children, mentally incompetent individuals • Justice in recruitment of subjects

14. Scope of Acceptable Research • Two issues: • Is there some research which should never be done even if the other concerns on our list can be met • Xenotransplantation? • Embryonic stem cell research? • Cloning?

15. Scope of Acceptable Research • 2. What do we do with the results of immoral research? • “good science is incompatible with bad ethics”? • “the Tuskegee study was and remains a key source of information about … syphilis.” (Caplan, 419) • “The immorality of research methods should not blind us to the importance of noting and discussing them.” (Caplan, 423)

16. Confidentiality • General obligation of confidentiality owed by physicians to patients extends to researchers • Embodied in research codes, guidelines • Research Ethics Board’s (REB’s) typically require policies re. storage and destruction of data and samples, anonymization of data • Should also be addressed in consent forms

17. Confidentiality • Tension between need to share data and privacy of subjects • Beware of over-promising confidentiality: • Access to data for safety and ethics monitoring • Health Protection Branch, Health Canada • Periodic review by REB’s • General legal/ethical obligations to break confidentiality • E.g., child abuse revealed during interview • Will be discussed in more detail in subsequent session

18. Confidentiality in Genetic Research • Genetics raises problems in that the information gathered through genetic research is not only information about an individual, but also about those to whom the individual is related • Is there a duty to warn family members of being at risk?

19. Research Involving Children • Application of ‘mature minor’ principle to research? • Substitute consent by parents? • Parents may consent to child’s participation in research that offers reasonable hope of benefiting child • What about research that has no intended benefit for the child? • Unclear

20. Research Involving Mentally Incompetent Individuals • Significance - research into Alzheimer’s, stroke, emergency department research, etc. • Substitute consent? • Advance directives? • e.g. NF Advance Health Care Directives Act

21. The TCPS (2.5-2.7) • Research on incompetent subjects may be acceptable provided that: • Consent is sought from the appropriate 3rd party • The subject’s wishes are sought and the subject does not dissent from the research • Using incompetent subjects is necessary in order for the research question to be addressed • The subjects are not exposed to more than minimal risks without the potential for benefits to the subject

22. Justice in the Recruitment of Research Subjects • So why do research on children & incompetent subjects? • Clinical research has potential to offer significant individual benefit • treatment only available through trial, most up-to-date, financial coverage for new medications, etc. • Also potential future benefit for class of patients • Historically medications/interventions predominantly tested on narrow segment of population - young-middle aged white males (“the 70 kg man”)

23. Justice in Recruitment of Research Subjects • Optimally, clinical trial sample population should mirror patient population in clinical practice • Inclusion of women, the elderly, individuals of Aboriginal, Asian or African heritage, etc • Tri-Council Statement 1998 • Anti-discrimination provision, importance of research on children and elderly