The National Bioethics Advisory Commission (NBAC) was established by Executive Order 12975, signed by President Clinton on October 3, 1995. NBAC’s functions are defined as follows:

a) NBAC shall provide advice and make recommendations to the National Science and Technology Council and to other appropriate government entities regarding the following matters:

1) the appropriateness of departmental, agency, or other governmental programs, policies, assignments, missions, guidelines, and regulations as they relate to bioethical issues arising from research on human biology and behavior; and 2) applications, including the clinical applications, of that research.

b) NBAC shall identify broad principles to govern the ethical conduct of research, citing specific projects only as illustrations for such principles.

c) NBAC shall not be responsible for the review and approval of specific projects.

d) In addition to responding to requests for advice and recommendations from the National Science and Technology Council, NBAC also may accept suggestions of issues for consideration from both the Congress and the public. NBAC also may identify other bioethical issues for the purpose of providing advice and recommendations, subject to the approval of the National Science and Technology Council.

National Bioethics Advisory Commission

     6705 Rockledge Drive, Suite 700, Bethesda, Maryland 20892-7979 Telephone: 301-402-4242 • Fax: 301-480-6900 • Website: www.bioethics.gov

ISBN 1-931022-17-8


Ethical and Policy Issues in Research Involving Human Participants

Volume II

Commissioned Papers and Staff Analysis

Bethesda, Maryland August 2001



National Bioethics Advisory Commission

Harold T. Shapiro, Ph.D., Chair

President Emeritus and Professor of Economics and Public Affairs The Woodrow Wilson School of Public and International Affairs Princeton University Princeton, New Jersey

Patricia Backlar

Research Associate Professor of Bioethics Department of Philosophy Portland State University Assistant Director Center for Ethics in Health Care Oregon Health Sciences University Portland, Oregon

Arturo Brito, M.D.

Assistant Professor of Clinical Pediatrics University of Miami School of Medicine Miami, Florida

Alexander Morgan Capron, LL.B.

Henry W. Bruce Professor of Law

University Professor of Law and Medicine

Co-Director, Pacific Center for Health Policy and Ethics University of Southern California Los Angeles, California

Eric J. Cassell, M.D., M.A.C.P.

Clinical Professor of Public Health

Weill Medical College of Cornell University New York, New York

R. Alta Charo, J.D.

Professor of Law and Bioethics Law School and Medical School University of Wisconsin Madison, Wisconsin

James F. Childress, Ph.D.

Kyle Professor of Religious Studies Professor of Medical Education Director, Institute for Practical Ethics Department of Religious Studies University of Virginia Charlottesville, Virginia

David R. Cox, M.D., Ph.D.

Scientific Director Perlegen Sciences Santa Clara, California

Rhetaugh Graves Dumas, Ph.D., R.N.

Vice Provost Emerita, Dean Emerita, and Lucille Cole Professor of Nursing University of Michigan Ann Arbor, Michigan

Laurie M. Flynn*

Senior Research and Policy Associate

Department of Child and Adolescent Psychiatry Columbia University New York, New York

Carol W. Greider, Ph.D.

Professor of Molecular Biology and Genetics Department of Molecular Biology and Genetics Johns Hopkins University School of Medicine Baltimore, Maryland

Steven H. Holtzman

Chief Business Officer

Millennium Pharmaceuticals, Inc. Cambridge, Massachusetts

Bette O. Kramer

Founding President

Richmond Bioethics Consortium Richmond, Virginia

Bernard Lo, M.D.

Director

Program in Medical Ethics Professor of Medicine

University of California, San Francisco San Francisco, California

Lawrence H. Miike, M.D., J.D.

Kaneohe, Hawaii

Thomas H. Murray, Ph.D.

President

The Hastings Center Garrison, New York

William C. Oldaker, LL.B.

Senior Partner

Oldaker & Harris, L.L.P. Washington, D.C.

Co-Founder and General Counsel NeuralStem Biopharmaceuticals Ltd. College Park, Maryland

Diane Scott-Jones, Ph.D.

Professor

Psychology Department Boston College Chestnut Hill, Massachusetts

*Resigned on May 10, 2001.



CONTENTS

Research Ethics in Australia A-1

Donald Chalmers

University of Tasmania

Location of the Office for Protection from Research Risks Within the National Institutes of Health: Problems of Status and Independent Authority

John C. Fletcher

University of Virginia

B-1

Privacy and Confidentiality in Health Research C-1

Janlori Goldman and Angela Choy

Georgetown University

An Examination of Issues Presented by Proposals to Unify and Expand Federal Oversight of Human Subject Research

C.K. Gunsalus

University of Illinois at Urbana-Champaign

The History, Function, and Future of Independent Institutional Review Boards

Erica Heath

Independent Review Consulting, Inc.

The Danish Research Ethics Committee System—Overview and Critical Assessment

Søren Holm

University of Manchester

D-1

E-1

F-1

Vulnerability in Research Subjects: A Bioethical Taxonomy G-1

Kenneth Kipnis

University of Hawaii at Manoa

Reflections on the Organizational Locus of the Office for Protection from Research Risks

Charles R. McCarthy

H-1

Protectionism in Research Involving Human Subjects I-1

Jonathan D. Moreno

University of Virginia

Federal Agency Survey on Policies and Procedures for the Protection of Human Subjects in Research

National Bioethics Advisory Commission

J-1

Local Institutional Review Boards K-1

Steven Peckman

University of California-Los Angeles

Institutional Review Board Assessment of Risks and Benefits Associated with Research

Ernest D. Prentice and Bruce G. Gordon

University of Nebraska Medical Center

L-1

Oversight of Human Subject Research: The Role of the States M-1

Jack Schwartz

Office of the Maryland Attorney General

v


Privacy and Confidentiality: As Related to Human Research in Social and Behavioral Science

Joan E. Sieber

California State University, Hayward

Unfulfilled Promise: How the Belmont Report Can Amend the Code of Federal Regulations Title 45 Part 46Protection of Human Subjects

Harold Y. Vanderpool

University of Texas Medical Branch, Galveston

The Ethical Analysis of Risks and Potential Benefits in Human Subjects Research: History, Theory, and Implications for U.S. Regulation

Charles Weijer

Dalhousie University

Charles Weijer of Dalhousie University, Halifax, Nova Scotia, Canada, prepared a paper for NBAC on the topic of protecting communities in research. That paper was published in 1999 in the journal Cambridge Quarterly of Healthcare Ethics. The reader can find the article at the following citation:

Weijer C. 1999. Protecting Communities in Research: Philosophical and Pragmatic Challenges. Cambridge Quarterly of Healthcare Ethics 8:501513.

The papers included in this volume were edited to conform to minimal stylistic consistency. The content and accuracy of the papers are the responsibility of the authors, not the National Bioethics Advisory Commission.

N-1

O-1

P-1

vi


RESEARCH ETHICS IN AUSTRALIA

Commissioned Paper Donald Chalmers University of Tasmania

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Preface

Australia has had a comparatively creditable record of ethical research involving humans. The litany of criticism about shoddy medical research documented in the epochal article by Professor Beecher (Beecher 1966, 1968; Levine 1986) has not occurred in this country. Comparatively fine as the Australian record may be, that record is not unblemished. A report commissioned by the Commonwealth Government in 1994 by Professor Margaret Allars into unsatisfactory aspects of the collection, manufacture, and injection of human growth hormone (Allars 1994) recommended that aspects of the research structure had to be reassessed. In particular, the Allars Report recommended a review of the National Health and Medical Research Council (NHMRC) Statement on Human Experimentation and the Supplementary Note on Reproductive Technology Procedures. Similarly, the Commonwealth Minister for Health (now called the Commonwealth Minister for Health and Aged Care) referred ethical concerns about two postwar procedures and one multi-center clinical trial in the 1990s to the Australian Health Ethics Committee (AHEC). The two postwar procedures involved first, the inclusion of orphans and State wards in vaccine trials conducted in the postwar years and, second the experimental use of estrogen to reduce the height of tall girls in the 1950s. The multicenter trial involved the so-called morning after pill (RU486).

     Research and experimentation has been a major issue, at least for the research community, in the last two decades in Australia. This age of skepticism (pace Eric Hobsbawn) has seen continuing demands for open government and greater public accountability, demands for expanded civil liberties, and demands for privacy protection rights. This wide debate has translated into debate about the protection of subjects in medical research (Laufer 1990; Darvall 1993), its major focus being the maintenance and improvement of ethical standards. This focus of concern is reflected in much of the work of the peak national health ethics body, the AHEC. In particular, the AHEC has conducted two series of National Workshops for Institutional Ethics Committees, a major review of the ethics review system in Australia (Chalmers 1996), and a major revision of the guidelines on research ethics published as the National Statement on Ethical Conduct in Research Involving Humans in mid 1999 (National Statement 1999). Ethical standards in human research and experimentation have not been static. The Australian research ethics community conducted a debate on improving and professionalizing the ethics review system during the late 1980s and 1990s. Researchers, institutions, trial sponsors, academic and professional critics, and changing attitudes to accountability have all contributed to an improvement in the practices and culture of research involving humans in this country.

     The AHEC has come far since the Finn Report amalgamated the National Bioethics Consultative Committee (NBCC) and the Medical Research Advisory Committee to form the AHEC. Professor Finn stated in his report that until the HEC (AHEC) concept is more fully developed and particularized, until the Council addresses more directly the burden of the ethics function...one cannot surmise with any confidence as to the extent to which those differences between the two bodies in their areas of mutual interest are likely to recede or be perpetuated (Finn 1990 at 14). Considerable advances were made in the first three triennia toward this evolutionary change.

     The Australian research ethics review system continues to evolve. The system could be described as a hybrid or intermediate system in contradistinction to entirely legislatively regulated systems or voluntary self-regulated models. There is no Australian equivalent of the National Research Act 1974. However, there is greater regulation of the system since the pre-1982 Australian voluntary system. Human Research Ethics Committees (HRECs), which conduct ethics review are not established by specific Commonwealth legislation, but they are recognized within the NHMRC Act 1992. In this major respect, research ethics review in Australia is not a voluntary system; it is better classified now as a regulated system.

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     Comparisons between HRECs in Australia and Ethics Committees in the United States are misleading. Some HRECs in Australia may perform some of the functions of Ethics Committees, but the comparable institution in the United States is an Institutional Review Board (IRB). As well as the infamous Tuskegee Study (Furrow et al 1995 at 548550), a number of questionable human experiments were disclosed before the U.S. Congress in the early 1970s. Disclosures were made particularly about dubious research conducted in prisons and mental hospitals and on human fetuses. Following these events, the National Research Act 1974 was introduced which required each institution conducting federally supported research involving human subjects to establish an IRB. These IRBs are required to review the ethical aspects of all research protocols within the institution. The general standards for the composition, operation, and responsibility of IRBs are contained in federal regulations (Code of Federal Regulations 1992).

     In order to fulfill the requirements of the federal regulations, each IRB is required to follow written procedures for the conduct of initial and continuing review of research and for reporting findings and actions to the investigator and the institution. An IRB determines which projects require review more often than annually and which projects need verification from sources other than the investigator. Changes in approved research may not be initiated without IRB review and approval, except where there are apparent immediate hazards to the human subjects. In addition to reporting to the IRB, there are other safeguards in the system. Both institutional officials and the Food and Drug Administration (FDA) must be told of any unanticipated problems involving risks to human subjects or others. Similarly, any instance of serious or continuing noncompliance with federal regulations or the decisions of the IRB (or any suspension or termination of IRB approval) must be reported to the institution or FDA. There are IRB procedural requirements aimed at ensuring proper consideration of the research. Except when an expedited review procedure is used, a research proposal must be reviewed by a majority of the members of the IRB. On review, at least one of the IRB members must be primarily concerned with nonscientific areas, and the proposal must receive the approval of a majority of those members present at the meeting.

     American Ethics Committees continue to evolve and are not settled in their functions (Annas 1984; In Re Quinlan 1976; Presidents Commission 1983). Ethics Committees in the USA include the following roles:

In effect, American Ethics Committees are patient care committees and are often referred to by this title. Some Australian hospital HRECs may perform some of the same functions as American Ethics Committees.

     Comparisons are also sometimes made with Research Ethics Committees in the United Kingdom, but, again, their functions do not compare precisely with those of Australian HRECs. The United Kingdom Research Ethics Committees are diverse in their functions and do not directly relate to Australian HRECs in that they operate within the National Health Service. A United Kingdom Department of Health circular of 1989 (HSC (IS) 153) requires that each district health authority appoint a ...properly constituted Local Research Ethics Committee (LREC), which meets regularly, to register, review and approve (or not approve) the research conducted by its staff, or using its premises or facilities, including access to personal health information held by the authority (and research undertaken by general practitioners within its boundaries). Research Ethics Committees in the United Kingdom are locally established and formally constituted as subcommittees within the health authority system. It has been noted that an Ethics Committee acts for and on behalf of the Authority (Brazier 1990).

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The growth of ethics committees has followed diverse paths, and a number of other ethics committees have been established beyond the terms of the Department of Health Circular Guidelines (Rawbone 2000). Brazier particularly notes that a number of fertility units have established advisory committees to assist practitioners in making decisions about the admission of individual patients to the program (Brazier 1990).

     This report presents background information on the ethics review system in this country, defines the current ethical system, and provides some background information on the new National Statement on Ethical Conduct in Research Involving Humans. This paper considers the current operation of the AHEC and the system of ethical review of research involving humans by HRECs in Australia. The paper also addresses some specific questions posed by the National Bioethics Advisory Commission (NBAC), namely the following:

1.
  
What are the strengths and weaknesses of nonregulatory systems of protection?
2.
  
What features of these systems, if any, should be incorporated in the U.S. system?
3.
  
What are the strengths and weaknesses of models that are comprehensive, those that encompass private and government sectors, and nonbiomedical and biomedical research?
1. Introduction

1.1 Three Tiers: Researcher Ethics Committee and National Body

A three-tier system of ethics review operates within Australia:

At the first level, the researcher continues to carry ethical responsibilities toward research participants. The National Statement begins with a reference to the researcher and states that the “…guiding value for researchers is integrity…” (National Statement 1999, Principle 1.1 at 11). The National Statement continues that the guiding ethical principle for researchers is respect for persons…” (Principle 1.2) and that “… the ethical principle of beneficence is expressed in researchers responsibility to minimize risks of harm or discomfort to participants in research projects (Principle 1.3). Researchers are also required to design their protocols to ensure respect for the dignity and well-being of the participants (Principle 1.4). Researchers should not discriminate in the distribution of benefits and burdens of participation in research or in the selection of research participants (Principle 1.5). Researchers have great responsibility in ensuring participant consent is obtained (Principles 1.71.12). Researchers must conduct research that has merit and balance the risks and likely benefits to be gained. Only people with the required experience, qualifications, and competence should conduct the research (Principles 1.131.15). These General Principles are bolstered throughout the National Statement with specific contextual duties of researchers to research participants in relation to the project. For example, in a clinical trial the researcher must declare any conflicts of interest through involvement in business or other similar association (Principle 12.5 at 36). It was a deliberate policy in drafting the National Statement to recognize and reinforce the ethical responsibilities of researchers.

     HRECs, which, until 1999 were referred to as Institutional Ethics Committees (IECs), conduct the second level of ethical review. The Australia HRECs compare closely with the U.S. IRBs established under federal regulations. Some HRECs were already operating before the system was formally established in 1982 by amendments to the Statement on Human Experimentation. The NHMRC issued the Statement on Human Experimentation, which was the predecessor to the current National Statement on Ethical Conduct in Research Involving Humans,

A-5


promulgated in 1999. The NHMRC was a nonstatutory body until 1992. In that year the NHMRC became a statutory authority when the Commonwealth Parliament passed the National Health and Medical Research Council Act, 1992 (Cth.). Although HRECs are not statutory bodies, institutions cannot receive research funding from public bodies unless consideration had been given to the research proposal by a properly constituted HREC. Originally, HRECs only considered medical and health research projects. Later, the Australian Research Council (ARC) (the major funding agency for nonmedical research) introduced a similar requirement that, in effect, expanded the jurisdiction of HRECs to all research involving humans.

     The third level in the system is the AHEC. This body is established under § 35 and § 36 of the National Health and Medical Research Council Act 1992 (Cth.). The AHEC is required to oversee the operation of the HREC system and receives annual Compliance Reports from every registered HREC (National Statement 1999 Principles 2.462.48). In addition, the AHEC has the sole authority to publish medical research guidelines. In so doing, the AHEC is required to follow § 1114 of the National Health and Medical Research Council Act 1992, which provides a unique procedure of two stages of public consultation before such guidelines may be issued.

1.2 The National Statement: Changes in the Research Environment

The National Statement reflects a number of significant changes in the ethics of human research. First, the National Statement includes a wider and more comprehensive view about research involving humans, going beyond medical experimentation and extending to all research involving humans. The first Australian guidelines in relation to research, the Statement on Human Experimentation, followed the Declaration of Helsinki and applied ethical standards to medical research involving human subjects. Gradually, the Statement on Human Experimentation was applied not only to medical research but other research involving humans particularly in the social and behavioral sciences. The new National Statement recognizes this evolution. Second, the National Statement recognizes the evolution of community and research community acceptance that now “…all kinds of research involving or impacting upon humans should conform to the highest standards academic integrity and ethical practice (National Statement 1999 at 2).

     Third, legislation is now more common place in the once self-regulated area of research ethics. Increasingly, Commonwealth and State legislation is impacting on and becoming more relevant to any consideration of research ethics. The regulation of Australian research is no longer a voluntary regulatory system of protection for research participants. Many Commonwealth and State Acts apply directly or indirectly to research. In particular, the NHMRC was brought under a statutory framework with the enactment of the National Health and Medical Research Council Act by the Commonwealth Parliament in 1992. Fourth, in a number of countries there have been efforts to identify a better definitional understanding of what is meant by research. The National Statement notes that:

There are many definitions of research. These include a systematic investigation to establish facts, principles or knowledge a study of some matter with the objective of obtaining and confirming knowledge. A defining feature of research is the validity of its results.

An alternative approach to finding a definition of research is to list examples for what constitutes research, such as:

or

n
  
the administration and analysis of data in response to surveys or questionnaires, interviews or opinion polling(National Statement 1999 at 6).

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     It is accepted that it is difficult to find an agreed-upon definition of research. The National Statement accepts that problems may arise from “…including activity that would not normally be included, like quality assurance activities or audits and excluding activity that probably should be included, such as research conducted as part of a course of education[and]omitting newly emerged genres of research, of which various kinds of multi-disciplinary research are examples (National Statement 1999 at 6). The definitional problem of research has been considered seriously in Australia. The issue of the appropriate boundary between research and innovative therapy in practice arose in the inquiry conducted by Professor Margaret Allars in relation to innovative hormone treatment (Allars 1994; Giesen 1995).

     Fifth, debates about the protection of subjects in research have expanded from concerns about physical protection to modern concerns about personal information privacy. Public concern about individual privacy is a major emerging challenge. Moves to store medical records on computer (rather than hard copy) have increased fears that privacy will be threatened. In respect of privacy, the federal Privacy Act 1988 (Cth.) was a watershed. The Privacy Act, particularly § 95 dealing with privacy in public research and the Information Privacy Principles (NHMRC 2000) has had a significant impact on public health (Cth.). The Privacy Commissioner has also extended the protections available to individuals in relation to their personal information held in the public sector under the Privacy Act 1988 (Cth.) to the private sector with amendments to this Act.

     Sixth, peer review and declining funding to research generally and medical research in particular cannot be discounted as an influence on changing research culture. It is far more difficult to obtain research funding. For example, the NHMRC funds only 20 percent approximately of research applications. Finally, moves to encourage private industry to contribute more funds to national research efforts, particularly in the area of genetics, has introduced increasing commercial considerations into the research environment.

     All of these developments are leading to a more regulatory environment in Australia but still without specific legislation for the HRECs. Legislation, in the form of the National Health and Medical Research Council Act 1992 (Cth.), establishes a national supervisory committee (the AHEC) and recognizes the HREC system. All public research-funding bodies require ethics approval before research can be undertaken. The Commonwealth statutory authority, the Therapeutic Goods Administration (TGA), regulates clinical trials of drugs and devices in the same fashion as the FDA in the United States. Finally, although private institutions and organizations are not obliged to follow NHMRC guidelines, there is a high degree of voluntary compliance on the part of private research organizations.

2. A Brief Background to the Development of Ethical Review in Australia

A brief background is presented of the developments leading to the current system of ethical review in Australia. The primary purpose for the introduction of both codes of research practice and committees to review research has been and remains the protection of the welfare and rights of participants in research. It is axiomatic that the foundation of any system of ethical protection for the welfare and rights of participants depends on the integrity of the researchers themselves. The new Australian National Statement recognizes the centrality of the researcher as the first level of review. The National Statement states that:

1.
  
The guiding value for researchers is integrity, which is expressed in a commitment to the search for knowledge, to recognize principles of research conduct and the honest and ethical conduct of research and dissemination and communication of results.
2.
  
When conducting research involving humans, the guiding ethical principle for researchers is respect for persons which is expressed as regard for the welfare, rights, beliefs, protections, customs and cultural heritage both individual and collective, or persons involved in research.

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3.
  
In research involving humans, the ethical principle of beneficence is expressed in researchersresponsibility to minimize risks of harm or discomfort to participants in research projects (National Statement 1999 at 11).

Ethics review committees conduct the second level of review. These were gradually introduced during the 1970s and formally so in the 1980s. HRECs grant ethical approval to researchers for their research and, in so doing, aim to protect the welfare and rights of research participants. However, they are not funded to or capable of acting as a policing agency for the work of researchers (Chalmers and Pettit 1998). Finally, in the early 1990s Australia introduced a third level, with the establishment of a national bioethics committee, the AHEC.

2.1 Toward National Ethical Standards in Research: The First Period—1973–1982

Until 1965, the prime responsibility for ethical standards in human experimentation rested with the integrity of the individual researcher subject to the oversight of that researchers institution and colleagues. Australia ratified the Declaration of Helsinki in 1965. This was an important symbolic act that was later realized by the introduction of committees to review the ethical aspects of research experiments on humans. During the same decade, there was awareness of the concerns for ethical standards in the United States, but it is not clear how far this awareness influenced developments toward the establishment of ethics committees to review research (Editorial 1976). Some institutions in Australia already operated ethics committees in the 1960s, and these influenced the development of the ethics review system. These early ethics committees in Australia predated American developments and may account for differences in the ways in which the Australian system has developed. Australia was essentially proactive in developing standards for ethical conduct in research rather than reactive to revelations or incidents of research impropriety.

     A major response to the Declaration of Helsinki was the drafting of Australias first guidelines on human experimentation, which were prepared by an ad hoc committee of the Medical Research Advisory Committee and adopted by the NHMRC. This first NHMRC Statement on Human Experimentation was amended in 1973 and again in 1976. This latter amendment was important as it provided that applications to the NHMRC for research grants were required to be submitted to a medical ethics review committee for ethical approval, and that medical ethics research committees were required to be established by institutions conducting medical research and experimentation (Jonas 1969; Fletcher 1973; Gillespie 1988 at 3). Funding was therefore made conditional upon ethical approval. The intention was to ensure peer review. There was only one minimal stipulation in relation to the composition of these committees, namely that one person not connected with the institution was to be appointed.

     This marked the first major step toward developing a systematic structure of ethical review by IECs, which in 1999 became known as HRECs in Australia. In an important sense this marked the end of the era of the self-regulation closed shop. This development was contemporaneous with demands for open government and greater public accountability, demands for expanded civil liberties, and demands for consumer rights. It was also in the mid-1970s that the public was beginning to hear reports of recombinant DNA research, genetic engineering, and the possibilities of IVF.

2.2 Toward IECs and the Medical Research Ethics Committee of the NHMRC: The Second Period19821989

The next significant steps in the development of ethical review were the revisions to the NHMRC Statement on Human Experimentation in 1982 and the establishment of the Medical Research Ethics Committee (MREC) in 1983.

     IECs were established formally in 1982. There were already many ethics committees in operation, particularly in the teaching hospitals before 1982. The NHMRC issued a new and substantially revised Statement on Human Experimentation that included four Supplementary Notes (these Supplementary Notes dealt in detail

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with the following specific topics: IECs; research on children, the mentally ill, those in dependent relationships (including unconscious patients); clinical trials; and IVF and embryo transfer). Supplementary Note 1 provided an expanded statement of the membership and functions of IECs, which were to be composed of men and women reflecting different age groups and including a person not associated with the institution. The minimum composition was a minister of religion; a lawyer; a medical graduate with research experience; and a lay woman and a lay man (NHMRC 1993b; McNeill 1993).

     In broad terms, IECs were concerned with the approval of research activities. In this respect a primary concern was ensuring effective consent on the part of subjects in research projects. The IEC reviewed copies of relevant consent forms, the research protocol, relevant past research, the selection criteria for research participants, the scientific method to be employed, the risks and benefits to subjects in the research program, and the perceived benefits of the research. The Supplementary Note established the functions of the IECs that were, in summary, to:

a) Consider ethical considerations of all proposed research projects; b) Maintain surveillance of approved research; c) Maintain a register of projects; and d) Establish and maintain communication with the MREC.

In carrying out the functions defined in Supplementary Note 1, IECs were required to

The MREC, which replaced the Medical Research Advisory Council, was established as one of the standing advisory committees to the NHMRC. It was commissioned to keep under review and make recommendations to the council on ethical principles in relation to human experimentation. In addition, the MREC was required to keep under review the work of IECs. The MREC thus created a third level of ethical consideration, and it was directly related to the systematic development of IECs in Australia.

     In 1984 it was decided that the MREC should review the operation of IECs throughout Australia and, in particular, consider the performance and effectiveness of the Supplementary Note on IECs in relation to their composition and function. During 1984 and 1985 a series of workshops were held in the major State capitals dealing with the constitution and functions of IECs (NHMRC 1985). A further round of workshops was held in the late 1980s.

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2.3 Toward a National Ethics Committee: The Third Period1988 to the Present

2.3.1 MREC

The MREC of the NHMRC was a major step in the evolution toward a national ethics body. The original remit of the committee was to make recommendations to the council on ethical principles in relation to human experimentation, and this the committee did with distinction during the 1980s. For example, the MREC updated the Statement on Human Experimentation in 1982 and included notes on IECs, research in children, the mentally ill, and those in dependant relationships or comparable situations; therapeutic trials; and IVF and embryo transfer (ET). In 1983 the NHMRC produced Ethics in Medical Research Involving the Human Fetus and Human Fetal Tissue which became Supplementary Note 5 to the Statement of Human Experimentation, and, in 1985 the NHMRC produced the Report on Ethics and Epidemiological Research, which was added as a new

Supplementary Note 6.

     At the same time as the revisions to the NHMRC Statement on Human Experimentation in 1982 and the establishment of the MREC, the controversial area of reproductive technology was considered by the NHMRC.

Supplementary Note 4 – In-vitro Fertilisation and Embryo Transfer, adopted by the NHMRC at its 94th session in October 1982, was the first official, Government-approved regulatory code for the practice of in-vitro fertilisation in this country (or, for that matter, anywhere)... (Scott 1984 at 3). This Note described IVF as a justifiable means of treating infertility (NHMRC 1992 at 14). The note went on to say, however, that “…much research remains to be done and the NHMRC Statement on Human Experimentation and Supplementary Notes should continue to apply to all work in this field. Accordingly, any institution offering IVF was required to have all aspects of its program approved by an IEC with a register being kept detailing parentage, treatment cycles, and records of success. The programs were to normally involve the ova and sperm of married partners (NHMRC 1992 at 14). Research remained ... inseparable from the development of safe and effective IVF and ET and so embryonic development ...beyond the stage at which implantation would normally occur is not acceptable (NHMRC: 1992 at 15). Finally, with some prescience, cloning experiments were declared ethically unacceptable (NHMRC 1984).

2.3.2 The Short-Lived National Bioethics Committee

An avalanche of Australian government reports followed this NHMRC Supplementary Note on IVF and embryo transfer (Waller 19821984; Demack 1984; Chalmers 1985; Cornwall 1984; Michael 1986; NSW Law Reform Commission 19801989; Family Law Council 1985; Senate Select Committee 1986). Reports on artificial conception from some States recommended State regulatory bodies; other States recommended that voluntary adherence to NHMRC guidelines was adequate without the need to introduce further regulatory schemes.

     There were essentially inconsistent recommendations in relation to regulation of embryo experimentation. Then the Commonwealth Senate set up a Select Committee that presented a report on Human Embryo Experimentation in Australia in 1985 (Senate Select Committee 1986). The report made recommendations on the regulation of embryo experimentation. The committee recommended that voluntary adherence to nationally promulgated guidelines monitored by IECs was not adequate (Senate Select Committee 1986, Chapter 4, para. 4.17). Instead, the Select Committee envisaged a national body, issuing research protocols and research licenses that should be required before experimentation of any kind was undertaken on human embryos. The license was to be for a limited time and subject to conditions (Senate Select Committee 1986, Chapter 4, para. 4.25). The committee recommended that a Commonwealth Statute, preferably in company with the States and the Northern Territory, should set down a broad declaration of the principle banning nontherapeutic embryo experimentation that frustrated the development of the embryo and should establish a licensing scheme.

     Importantly, in relation to the development of a national ethics committee, the report recommended the national body be controllable through administrative proceedings, where licenses may be issued outside its

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powers or where the body acted in any way outside its charter. This national body would report to Parliament (Senate Select Committee 1986, Chapter 4, para 4.42), consult with the public (Senate Select Committee 1986, Chapter 4, para 4.43), and

Formulate guidelines, consider research protocols, and monitor research procedures...and initiate prosecution or injunction against those carrying out prohibited experimenting. Such a body would supersede the NHMRC with its MREC (Senate Select Committee 1986, Chapter 4, para 4.46).

     The report by the Family Law Council (a statutory council set up under the Commonwealth Family Law Act 1975 to advise on the development of federal family law) also recommended establishing a National Body (Family Law Council 1985). This report recommended a National Council on Reproductive Technology, which was to take a national approach to research and practice in reproductive technology in Australia (Family Law Council 1985, recommendations 30, 31).

     Both the report of the Senate Select Committee and the Report of the Family Law Council echoed the call in 1982 by Justice Michael Kirby, who had promoted some form of institution to tackle questions of ethics and experimentation, particularly in the area of IVF:

Otherwise, it will be the judgment of history that the scientists of our generation brought forth most remarkable development of human ingenuitybut the lawyers, philosophers, theologians and law-makers proved incompetent to keep pace (Kirby 1983 at 12).

Following the publication of the Senates Select Committee Report, the federal government decided to establish the NBCC. In 1988 the Federal Minister for Health in conjunction with the other Australian State Health Ministers announced that, in view of rapid advances in biotechnology creating bioethical issues, a new body would be established. The NBCC was established by the Health Ministers of Australia (with approval of the States Attorneys-General), but it was not invested with executive functions and only had advisory powers. The NBCC was limited to issues of artificial conception and was requested to consider and made recommendations in the area of human embryo experimentation.

     The committee was multidisciplinary, with representatives in areas of philosophy, moral theology, social science, womens health, law, medical research, nursing, and gynecology. It was effectively and ably led by Ms. Robyn Layton QC of the South Australian Bar. The aim of the NBCC was to search for a

more coordinated, national approach to this issue [reproductive technology]...and the National Bioethics Consultative Committee will play an important part in formulating such an approach (Senate Select Committee 1986).

The NBCC met for the first time in August 1988. During its brief and at times turbulent period, the NBCC produced a number of major reports including the following:

By mid-1990 the NBCC was gearing down as proposals were being considered to incorporate it into the NHMRC structure (Finn 1990).

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2.3.3 The AHEC Established

Before the introduction of the National Health and Medical Research Council Act, 1992 (Cth.), in 1991 formal discussions began between the Chair of the NBCC, Robyn Layton QC of the South Australian Bar, and the Chair of the NHMRC, Dr. Di Horvath, with a view to amalgamating the MREC and the NBCC. The then Minister for Community Services and Health, The Hon. Mr. Brian Howe MHR, had commissioned a report on the advisability of concentrating advice to government on health ethics matters within a principal committee of the NHMRC (Finn 1990). The NBCC was established to handle specific references from the Australian Health Ministers Advisory Committee (AHMAC). As such, the NBCC could never have been a permanent standing committee. By the time of the publication of its Report on Surrogacy (NBCC 1990), the NBCC had completed the review of the key issues in reproductive technology. In a similar vein, the MREC was not the sole repository of ethical advice within the NHMRC.

     The Minister for Community Services and Health decided to establish a new committee within the NHMRC to advise on health ethics. The new committee was to take up many of the responsibilities of the NBCC and the MREC as well as the ethical advice, which could flow, from the other principal committees of the NHMRC. In early 1991 it was decided that the new committee would be a principal committee of the NHMRC and was to be tentatively called the Health Ethics Committee (HEC). At early meetings, the broad terms of reference and focus of the new amalgamated HEC were established. These were:

1.
  
To focus upon the social, legal, and ethical dilemmas arising from the fields of medical research, health care practice, and public health;
2.
  
To pursue an agenda within the broad priorities of NHMRC;
3.
  
To provide advice on particular ethical situations by linking people within the networks of the NHMRC; and
4.
  
To respond to issues identified by the principal committees of the NHMRC.

The issue of the continued independence of the proposed HEC was the subject in some of these earlier discussions. It should be noted that the early Terms of Reference specified that the HEC was neither to have the role of providing an ad hoc ethics advisory service to the NHMRC nor to be used as a clearinghouse for reports from other principal committees of the NHMRC. Early discussions conceived of a committee of ten people covering many disciplines, with a national representation and balanced gender mix. It was agreed that the expertise of the NBCC could be broadened with the possible inclusion of a further clinician, health economist, and epidemiologist. Most importantly the expertise of the NBCC had to be supplemented with expertise from the MREC, particularly in relation to the operation of IECs. The success of these negotiations were quickly realized with the presentation of a work program to the June 1991 Council Meeting of the NHMRC.

     The processes of the new HEC were discussed in some detail. The new principal committee was to enjoy a fair degree of independence within the structure of the NHMRC with power to set its own priorities. Matters could be referred by the NHMRC, other principal committees of the NHMRC, or from Commonwealth and State ministers. In addition, the new committee:

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Finally, it was felt that the NBCC had achieved a high international profile and a style and quality of consultation that was important to maintain. For this reason the title Australian was to be added to the original suggested title of HEC to form the new AHEC.

3. The Commonwealth Review of Ethics Committees 1995–1996

3.1 Background to the Ministerial Review

Under the National Health and Medical Research Council Act 1992 (Cth.), the AHEC was made responsible for the administration of the national system of HRECs. While the system was generally recognized as working well during the 1990s, a number of areas of improvement were frequently mentioned in correspondence to AHEC, in the Medical Journal of Australia, and at public seminars, particularly the AHEC sponsored workshops in 1993 and 1995. Some of those included:

In 1995, the Commonwealth Minister for Health, the Hon. Dr. Carmen Lawrence MHR, announced an inquiry into the ethics review system. The review was requested in the context of two events. First, there was the controversy surrounding Family Planning Australia trials of the abortifacient RU486 in 1994. Second, in the same year, the Report of the Inquiry into the Use of Pituitary Derived Hormones in Australia and Creutzfeldt-Jakob Disease by Professor Margaret Allars (hereafter referred to as the Allars Report) (Allars 1994) was released. The Ministerial Review Committee was to inquire into the operation of HRECs with particular reference to the problems which have been identified following the Allars Report (Allars 1994) and the RU486 trials. RU486 was the so-called Morning After Pill which was counter-trialed in both Sydney and Melbourne. These trials formed part of an international multicenter study to determine the effectiveness of various doses of the drug and were sponsored by the World Health Organization (WHO). Although much of the controversy surrounding the trials related to ideological differences and concerns as to the appropriateness of the drug importation procedures, issues regarding the adequacy of the ethics committee review process were also raised. A separate and independent review on the RU486 trials (chaired by Professor John Funder) was conducted. That committee reported that ethics committee review had been adequate and recommended, following some modifications to the consent forms, that the trials recommence.

     The 1995 Ministerial Review was not required to address the science or ethics of the RU486 trials but was requested to comment on issues relating to consent and the adequacy of HREC operation and review

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procedures (including issues of membership and decisionmaking). The Allars Report (Allars 1994) also raised fundamental issues relevant to the Ministerial Review relating to monitoring of ongoing research, the distinction between treatment and research, and the importance of consent by, and the duty to warn, research participants. The pituitary hormones program, which was the subject of the Allars Report, had been initiated at a time before the establishment of the ethics review system. In addition, the use of these hormones was considered to be treatment that had already been tested and adopted overseas. Many of the issues raised in the Allars Report concerned poor practice in relation to the collection and use of damaged pituitaries and were beyond the scope of the Ministerial Review. The Reviews Terms of Reference required that it have special regard to issues of concern to women particularly in trials relating to reproductive technology and to examine and report on recommendation 10 of the Allars Report which stated:

10.
  
That the NHMRC
n review the Statement on Human Experimentation to ensure that
n it provides guidance with regard to decisions as to whether treatment in a therapeutic setting constitutes an experiment;
n a procedure is developed by which such decisions are scrutinized and not left entirely to the treating medical practitioner.
n issue a Supplementary Note on Reproductive Technology Procedures which ensures that new procedures, including the use of drugs in new treatment regimes, are:
n registered with the Health Ethics Committee of the NHMRC; and
n approved by the institutional ethics committee of the institution in which the procedure is carried out; and n consent is made in on the basis of full information regarding risks and outcomes as defined in the Supplementary Note 2 on Research on Children, the Mentally Ill and Those in Dependent Relationships or Comparable Situations(Allars 1994).

3.2 Matters Addressed by the Ministerial Review

A number of issues, summarized below, were addressed in the Ministerial Review and presented in the Report of the Review on the Role and Functions of Institutional Ethics Committees (Report on IECs) (Chalmers 1996). These issues provide a background to the consultation and led to the publication of the revised National Statement on Ethical Conduct in Research Involving Humans. A list of the actual recommendations is included in Schedule 1. The Report on IECs noted the heavy and increasing workload of IECs, their lack of resources, their limited expertise in dealing with some types of research, difficulties with monitoring and with multicenter trials, and the dominance of scientists on the committees. The following are some of the main areas addressed.

     Multicenter Research. There was no system of formal regional or national ethics review. Each IEC gave approval to research conducted in the institution. The practice had developed for individual IECs to communicate and exchange views with other IECs, particularly in relation to research projects carried out at different centers. The AHEC received numerous requests urging the establishment of a single national research ethics committee to consider multicenter trials involving humans. Researchers raised difficulties experienced in conducting multicenter trials where ethics approval must be obtained from a number of different IECs which may reach different conclusions in relation to the ethical acceptability of the trial. Different procedures, different meeting times, and different IEC membership often resulted in considerable delay in mounting a trial.

     The Report on IECs proposed that it was appropriate for one Australian IEC to accept the scientific assessment or reasons for ethical approval of another IEC. There was no reason in principle why this other committee need be Australian based; it could be an approved overseas committee.

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     Multicenter Clinical Trials. Until 1991 all pharmaceutical and device trials were conducted under the auspices of the centralized Commonwealth TGA. Following the Baume Report (Baume 1991) a deregulated Clinical Trials Notification Scheme (CTN) was introduced which allowed IRCs to participate in organized clinical trials of pharmaceutical drugs and devices by notification only to the TGA (AHEC 1992). As a result of the CTN scheme, only a self-selecting group of IECs (now known as HRECs), with appropriate infrastructure support, mainly based in major teaching hospitals, participates in this scheme. This issue is dealt with in Section 6 of this report.

     Adequacy of Compensation and Insurance Arrangements. The AHEC considered the issues of compensation, indemnity, and insurance in relation to the introduction of the deregulated CTN scheme for clinical trials of drugs and devices. The concerns of IECs were twofold. First, IECs were concerned that the individual members of the committee might have attracted legal liability from the decisions giving ethical approval to a CTN application (Capron 1985). Second, there were concerns that the institutional arrangements for insurance cover for participants in a clinical trial might not have been clear in relation to existing institutional insurance arrangements.

     In relation to the first concern, a number of legal decisions were widely discussed causing concern in the Australian research ethics community. The High Court of Australia decision in Rogers v Whitaker established that a medical practitioner has not only a duty to exercise reasonable care in the diagnosis and treatment of a patients condition, but also a duty to disclose material risks inherent in any proposed treatment. A risk is material if in the circumstances a reasonable person is likely to attach significance to it, and the medical practitioner knows or should know that the particular patient is likely to attach significance if warned of the risk (this is consistent with U.S. and Canadian case law Canterbury v Spence and Reibl v Hughes). In this respect there is a higher duty of disclosure in the case of research projects: Halushka v University of Saskatchewan. There is further direct authority on the liability for nondisclosure of risks to research participants in the Canadian decision in Weiss v Solomon. This case also excited much critical comment (Freedman and Glass 1990). A number of other American cases have established the liability of hospitals in relation to decisions by Ethics Committees (see, for example, Davis v Rodman; Bouvia v Glenchur; Merritt 1987 at 12501252).

     In relation to the concerns some institutions questioned the compensation limits, which were included in the documentation supporting some protocols for multicenter clinical trials. The AHEC reviewed a number of research compensation arrangements, which included limits on the amount of any claim for compensation by a research subject in a trial. These limits were clearly inadequate in comparison with Australian insurance payouts for injuries. The AHEC had addressed these concerns earlier in a report that required institutions to review their compensation indemnity and insurance arrangements with their insurer and to put in place appropriate compensation cover for research participants (NHMRC 1994). A major national insurer introduced a specific no-fault liability cover for clinical trials, which was taken up by a number of institutions participating in multicenter clinical trials.

     Workload and Resource Support for IECs. This issue was clearly identified through the 1993 Survey of IECs and the Workshops for IECs (AHEC 1993). There was an expansion in workload because of a failure to sufficiently define the distinction between clinical practice and human experimentation. The result was that additional projects were referred to IECs, which would be more properly described as clinical practice and not experimentation. The other major growth in workload arose from referrals of health related and social science research projects to IECs.

     Monitoring of Projects. Under the NHMRC Guidelines (NHMRC 1992), IECs were required to monitor research. A variety of methods were reported by IECs, mainly taking the form of reports by the investigator. Very few IECs reported systematic methods for monitoring, and only a handful reported the use of site visits.

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     Composition. There were concerns that the decisionmaking process was influenced too heavily by those with research interests. The original idea of an IEC was that it should have a majority of outside members. Surveys confirmed that clinicians and medical researchers dominated most IECs in Australia. The NHMRC Statement on Human Experimentation provided a minimum membership (NHMRC 1992). In fact, the majority of IECs were in the range of 10 to 15 members (16 or more members 5 percent; 10 to 15 55 percent; 10 or fewer 40 percent) with the majority represented by researchers. Paul McNeill has been a strident critic of this (McNeill 1993). Much of this diversity was due not only to the purpose of the institution and the nature of the research, but particularly to the authority, power, and responsibility given to, or accepted by, or assumed by IECs. In some institutions, the IECs had a broader function providing an advisory, policy and educational role relating to matters of clinical practice and management. Such committees may only rarely consider research proposals.

     Procedures. Many of the IECs reported that they were not well resourced. This had the consequence, in some cases, of inadequate official record keeping. IECs make decisions that can have a direct effect on the reputation or standing of the researcher, the rights of the research subject, and the interests of the institution. The question which arises is whether these decisions ought to conform with the accepted standards of good administrative practice requiring that decisions are recorded and that reasons should generally be given. There is some authority for the proposition that an IECs decisions are reviewable (R v Ethical Committee of St Marys Hospital ex-parte Harriott), and it is probable that professional members in an IEC are answerable to the disciplinary authorities of their profession.

3.3 Comment

The Report on IECs (Chalmers 1996) was accepted by the Council of the NHMRC during 1996, and its various recommendations were steadily introduced culminating in the introduction of the National Statement on Ethical Conduct in Research Involving Humans in 1999. The report recommended that the original NHMRC Statement on Human Experimentation (NHMRC 1992) required a thorough revision taking into account parliamentary references to the AHEC, issues of public interest, and new ethical questions raised by technological advances.

     It is interesting to note the similarities between this Australian Report and a review in the United States by the Office of the Inspector General of the Department of Health and Human Services. This review noted concerns that the IRBs in the United States have generally been doing too much, too quickly with too little expertise. The steady move toward more formal, regulated, and professional processes of ethics review of research is, no doubt, a common theme in most countries.

4. The Current System of Ethical Review in Australia

4.1 The National Health and Medical Research Council of Australia

Since its creation in 1937, the National Health and Medical Research Council has been the peak Australian funding body for health and medical research. One of the original aims of the NHMRC was to promote consistency in the health and public health policies of the individual State governments within the federal system. The NHMRC, having been established by Order-in-Council in 1937, was placed under a new statutory framework with the passage of the National Health and Medical Research Council Act 1992. The NHMRC remains the principal independent advisory body on health under the Act. Importantly, it is the principal national body for the provision of advice on matters of health ethics. Under the National Health and Medical Research Council Act, the council is charged with a number of functions including inquiring and issuing guidelines on the improvement of health; the prevention, diagnosis, and treatment of disease; the provision of health care; public health research and medical research; and ethical issues relating to health.

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The Act confers four obligations on the NHMRC:

4.2 The AHEC Function and Relationship with the Commonwealth Parliament

The ethics advisory function is carried out by the AHEC, a principal committee of the NHMRC.

     The AHEC was established under the National Health and Medical Research Council Act 1992 (Cth.) (see particularly § 35 and § 36). It is a multidisciplinary committee which, under the Act has the following Terms of Reference:

1.
  
To advise the Council on ethical issues relating to health.
2.
  
To develop and give the Council guidelines for the conduct of medical research involving humans.
3.
  
Such other functions as the Minister from time to time determines.

The Minister made such a determination at the time of the Act and conferred further functions on the AHEC as follows:

3.1 To develop and give the Council guidelines for ethical conduct in the health field, additional to those required for function 2 above, and for the purposes of the Privacy Act 1988;

3.2 To promote community debate and consult with individuals, community organizations, health professions and governments, on health and ethical issues;

3.3 To monitor and advise on the workings of institutional ethics committees (now HRECs);

3.4 To monitor international developments in relation to health ethical issues and files with relevant international organizations and individuals.

The NHMRC had some initial challenges in becoming fully acquainted with the expectations of the Senate-initiated AHEC that replaced the MREC (Commonwealth Parliamentary Debates: 1991 at 10891092). A short time after the passage of the National Health and Medical Research Council Act, it was decided that there should be an external review of the NHMRC. A Canadian academic was commissioned, and a report was presented in December 1993 (Bienenstock 1993). This report recommended that the NHMRC improve its planning processes for developing and setting priorities and strategies; improving the advisory processes of the NHMRC Committees; improving and simplifying the research funding allocation processes; and, finally, recommending substantial changes to the administrative support of the NHMRC.

AHEC was the subject of specific comment in the Bienenstock Report, which is worth quoting at length:

AHEC is the most recently established of the Principal Committees of the NHMRC, having been in operation for two and a half years at the time of this review. It evolved from the former Medical Research Ethics Committee of NHMRC and the National Bioethics Consultative Committee (NBCC) of the Australian Health Ministers Conference.

It has continued the work of monitoring and supporting around 150 institutional ethics committees through activities such as workshops, introducing a newsletter and providing

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advice and speakers on request. AHEC has also developed the broader ethics role, conducting some preliminary work into the ethics of health resource allocation, guidelines to promote ethical conduct in the health field, and issued various discussion papers on health ethics issues....

It is apparent that AHEC has had some difficulty in coming to grips with its role and function in what is undoubtedly a complex and extraordinarily wide ranging area. It has attracted considerable criticism from some quarters for failing to provide concrete advice on practical issues relating to research, particularly those relating to the operations of Institutional Ethics Committees (IECs), though some progress appears to have occurred in this area at the most recent Council meeting. It is seen by some people as being dominated by the members of the former NBCC, which was concerned with broader ethical, social and legal aspects of health care, and as having insufficient expertise and involvement by practicing researchers to deal with concrete ethical problems relating to research. On the other hand, some members of AHEC have felt that the Committee has been too occupied with the agendas of subcommittees, particularly the IEC Subcommittee, to be able to define its broader role and activities.

Consideration of the legal and ethical aspects of health will grow in importance in the future. The NHMRC will play a vital part in this development. A balanced approach to this issue must involve recognition by health practitioners that ethical considerations are crucial in their work, and by the NHMRC that health practitioners and researchers must be an integral part of the development of appropriate guidelines. To separate ethical considerations from the practice of health and research is to invite irrelevance rather than independence (Bienenstock 1993 at 2324).

Professor Bienenstock recommended that AHEC should integrate its activities and priorities with those of the NHMRC as a whole, focus its energies on issues of highest practical and immediate priority, and be accountable to Council for its work. In so doing AHEC was to be restructured to more fully integrated activities with the principal committees of NHMRC (Bienenstock 1993, Recommendation 11). AHEC was to operate as any other principal committee of the NHMRC, but with the unique guideline development function under § 8 of the Act.

4.3 The AHEC Composition and Role

Only two of the principal committees of the NHMRC, namely the Research Committee and the AHEC, were specifically mentioned within the terms of the National Health and Medical Research Council Act 1992. By § 35 of the Act, the Minister must establish principal committees called the Medical Research Committee (now the Research Committee) and the AHEC. During the parliamentary debate and particularly those in the Senate, the composition and independent role of the AHEC was established.

n § 36 of the National Health and Medical Research Council Act 1992 provides that AHEC is to have the following membership:

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The organizational and structural changes recommended by the Bienenstock Report (Bienenstock 1993) were put into place during the first half of the 1990s. By the second triennium of the AHEC (19931996) the Council of the NHMRC had a clear appreciation of the role and function of the AHEC. In particular, the Council recognized that the guideline development function of the AHEC was neither an advisory role nor a role which could be interfered with by the Council.

4.4 Guidelines of AHEC and Consultation

The AHEC, in its role as one of the principal committees of the NHMRC, is responsible for developing guidelines for the conduct of medical research involving humans, other advice relating to health, and for providing assistance to HRECs.

     The guideline development function of AHEC is critical. Under § 8 of the National Health and Medical Research Council Act 1992 (Cth.), the NHMRC issues guidelines for the conduct of medical research involving humans. However, the guidelines for the conduct of medical research are developed by the AHEC and must be issued by the NHMRC precisely as developed by the AHEC (§ 8(2)). It should be noted that guidelines promulgated by the NHMRC do not have the same legal effect as legislation. However, the NHMRC is a creature of

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statute (National Health and Medical Research Council Act 1992) (Cth.), and the Act provides that the NHMRC may promulgate guidelines. NHMRC guidelines relating to ethics are laid before Parliament before they come into force. It is therefore not accurate to describe the guidelines as voluntary. Guidelines have two specific legal aspects. First, they establish standards of reasonable practice. HRECs must follow these guidelines and in so doing act with fairness. Rules of administrative law deal with the standards of fairness required of committees. In this way HRECs are probably subject to administrative review which looks to standards of natural justice and procedural fairness. Second, and more importantly, the guidelines could be used and admitted as evidence in court proceedings to demonstrate that the deliberations and actions of a HREC are reasonable and fair and provided that the guidelines themselves are reasonable and that the HREC acted within their scope.

     This rather unusual guideline-making function was inserted by the Commonwealth Parliament. It appears from the Senate Debates in relation to the Act (Senate Debates 1992, at 10891092) that this was inserted to ensure that the guidelines were a product of the public consultation process rather than the individual, and possibly medically biased, views of the Council of the NHMRC itself. In this respect the AHEC is a part of the NHMRC but is independent in the development of national guidelines in relation to medical research.

     A complex consultation procedure was established under § 1114 of the Act. Concerns that guidelines were in-house rather than public products resulted in the introduction of a unique two-stage consultation system. At the first stage, there is an advertisement of the intention to consider and develop guidelines in a particular area. In most cases, the AHEC circulated an information package or Issues Paper on the topic proposed for the guidelines. At the second stage the draft guidelines themselves were circulated for further advice and comment. Through these means it was intended that ex cathedra opinions by AHEC were to be avoided. Later, a decision by the Federal Court of Australia placed additional responsibilities on the NHMRC in relation to public consultation. In the case of Tobacco Institute of Australia Ltd v National Health and Medical Research Council and Others,

Justice Finn considered the specific terms of section 12 of the National Health and Medical Research Council Act. This section requires that the NHMRC have regard to the submissions presented to consultation and give genuine consideration to the material. The appellant, Tobacco Institute, had presented copious material to a consultation in relation to a draft Report on the Effects of Passive Smoking and Health (The report contained guidelines and was therefore subject to the two stage consultation requirements of the Act). The working party on the report decided to divide this material among the various members for reading and comment. Accordingly, each member read only part of the material. Justice Finn concluded that the obligation to have regard to the submissions required the NHMRC in its working parties preparing any report to give positive considerationto the contents of the submissions as this was a fundamental element of decisionmaking. As a result of this decision, the AHEC introduced lengthy minute taking of all consideration of submissions. AHEC developed a system of recording the acceptance or rejection (with reasons) of particular points raised. The minutes of AHEC in relation to public consultation were always treated as public documents available under the Freedom of Information Act 1982 (Cth.).

     The AHEC is also required to promote community debate and consults with individuals, community organizations, health professionals, and governments on health and ethical issues.

4.5 Accountability of AHEC

The AHEC is subject to the normal organizational accountability procedures. The AHEC is required to present a work plan to the Council of the NHMRC. In addition, the AHEC is subject to financial and internal audits, presents reports (through the Chair) to meetings of the full Council and prepares a final report that is included in the publicly available Annual Report of the NHMRC (an example is included in Schedule 2).

     Public accountability is perhaps best achieved by the public consultation provisions of the National Health and Medical Research Council Act. As described above, the AHEC is required to conduct public consultation,

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and the guidelines which issue must have proper regard and pay positive consideration, to the contents and views expressed in the submissions. As a national organization, it is also subject to professional comment and criticism in the press and academic literature.

     The AHEC is also answerable through the political processes. First, the relevant Commonwealth Minister may refer matters for consideration by the AHEC. For example, in late 1997 the Commonwealth Minister for Health and Aged Care referred the issue of human cloning to the Committee for advice (AHEC 1998). Importantly, the Commonwealth Parliament of Australia Senate was modeled on the United States Senate and enjoys the strong investigator committee system of the United States (the Lower House of Representatives reflects the Westminster Parliamentary system, and the Upper House Senate reflects the American Senate; as such the Parliamentary system is often referred to as a Washminster Parliamentary system). The Senate Estimates Committee has regularly interrogated the Executive Secretary of the AHEC on its works and finances. This was a deliberate consequence of placing the NHMRC under a Commonwealth statutory framework.

4.6 Australias System of Ethics Committee Review

Number of Committees. HRECs are the foundation of the ethical review system in Australia. (Breen 1997; Bennett 1997; Skene 1998; Freckelton and Petersen 1999). There are some 217 HRECs operating in Australia and registered with the AHEC. HRECs rely on the voluntary contribution of members, a degree of self-regulation, and modest financial support. The HRECs are responsible for the protection of research participants and ensure that research protocols are considered in conjunction with NHMRC and other applicable guidelines, with support and advice from AHEC.

     At the time of this writing there are now 217 registered HRECs in Australia with the following approximate proportional distribution:

There continues to be variation among the HRECs. There are several aspects to this variation, which can be identified. There are a number of different types of institutions within which HRECs operate, ranging from large teaching hospitals to small regional universities, and from research institutes to small, special purpose organizations. Health institutions for example, range from the large teaching hospitals associated with the major medical schools to small rural base hospitals. There are also repatriation (for ex-defense force personnel) hospitals, area health services (in NSW and Queensland), specialist organizations such as the Red Cross and the Bone Marrow Donor Registry, as well as the specialist medical colleges. A third level of variation among HRECs, which can be identified, is the regional differences that arise from the variation in State legislation. For instance, HRECs in different States face different issues when considering a specific type of research (such as embryo experimentation) when State legislation is inconsistent. Therefore, it should be borne in mind that the HRECs in Australia are not entirely homogeneous, though much standardization is under way.

     Review by and Role of HRECs. The Preamble to the National Statement clarifies its purpose as a whole and the role of HRECs in particular as the protection of the welfare and rights of participants involved in research. Some submissions to the public consultation in relation to the new National Statement expressed the view that Research Ethics Committees should facilitate research. While it is to be hoped that the HREC is not deliberately obstructive, the National Statement clearly places the protectory role on HRECs. Members of a HREC do

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not have many representative responsibilities to the constituency from which they are appointed. The members do not in any sense represent the constituency. The National Statement again clarifies that the HREC membersresponsibility is to decide independently whether conduct of the research proposal involves the proper protection of the welfare and rights of research participants (see, for example, Bennetts v Board of Fire Commissioners of New South Wales). Importantly, HRECs consider all research involving humans and are not confined to the consideration of medical research only. HRECs are required to consider a large number of protocols ranging from drug trials and gene therapy to behavioral or social science research. All research involving clinical trials, regardless of the funding source, are assessed. To date, the review system has managed to cope adequately with the increasing number of clinical trials and research projects. In 1997 around 1,400 clinical trials were approved under the CTN, not to mention those trials under way and being monitored.

     Membership of the HREC. The National Statement has increased the core membership of HRECs with a view to ensuring that the HREC responds to its protectory role rather than the institutional interests in promoting research. The membership now consists of:

If, at any stage, further members are added to the HREC, the institution is required to retain the balance and diversity of the institutional/noninstitutional members.

     Procedures. The National Statement has introduced a number of new requirements to ensure proper discussion, contributions from members, and recording of decisions (this is discussed more extensively in Section 5 of this report).

4.7 Accountability of HRECs

Annual Compliance Requirements to AHEC. Under the previous Statement on Human Experimentation, IECs were required to present a minimal report confirming compliance with the guidelines at the end of the calendar year. There was no formal system of certification or accrediting of the committees. Under Principles 2.462.48 of the new National Statement on Ethical Conduct and Research Involving Humans, the compliance reporting requirements have increased considerably. The AHEC audits the activities of the HRECs to ensure compliance through a detailed Annual Report that seeks responses on issues of membership, meetings, agendas, approvals, rejections of projects, difficulties, and complaints. A failure to present an acceptable compliance report may, after investigation, lead to a removal of external funding from the institution. In this respect, HRECs are required to register with the AHEC as a precondition to being able to submit research projects for funding to the major public bodies.

Complaints Mechanisms. Before the National Statement, many of the long-standing Research Ethics

Committees had established complaints mechanisms. The National Statement now requires that any institution that establishes a HREC must also establish an independent complaint mechanism to handle complaints from research disciplines. In the first instance, it is expected that a research protocol should include a reference to a person nominated by the HREC to receive complaints. If this initial procedure cannot resolve the complaint

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from the research participant, the HREC must formally refer the complaint to the institutions complaint handling processes. The HREC is also required to ensure that information about pursuing complaints is made known to the research participants at the time of consenting to entering the research protocol.

     Independent of these National Statement complaint mechanisms, all States and Territories have established administrative procedures for making complaints about the health system. The Health Complaints Commissioners in the States and Territories receive complaints about medical practitioners and the delivery of medical services. Where these complaints relate to research by a medical practitioner or medical research carried out in the health system, these complaints may be referred to the Health Complaints Commissioner. Very few complaints concerning research have been referred to the Health Complaints Commissioners among the many thousands of general complaints. This may indicate an absence of complaints about the research system or, alternatively, problems in the making and reporting of complaints.

4.8 The Work of the AHEC: 19912000

A brief outline of the references, work, and guidelines produced by the AHEC is presented. This illustrates the manner in which the AHEC has established functions both within the NHMRC and nationally within the research ethics committee system.

     AHEC met for the first time at the end of August 1991. During its first two triennia (19911996), AHEC undertook work on a case study of the legal and ethical implications of HTLV-I; information papers on the legal liability of institutional ethics committees, ethical considerations relating to health care resource allocation decisions, nature of qualitative research, human gene therapy, workshops for institutional ethics committee members; monitoring and supporting the HRECs through workshops, newsletters and advice, and, guidelines relating to IVF and embryo transfer, privacy in medical research, and the use of patient tissue samples for research.

The third triennium of the AHEC was marked by a substantial revision on the Statement of Human

Experimentation and a formal reference of work on human genetics by the Commonwealth Minister for Health and Aged Care. The work was as follows:

n The National Statement on Ethical Conduct in Research Involving Humans

The Statement is discussed below at Section 5 of this report.

n The Genetics Program

The ethics of human genetic research was the major focus of the work of the AHEC during this period. A specific Working Party was convened, and developed and finalized two sets of guidelines are as follows:

Guidelines for Genetic Registers and Associated Genetic Materials and Guidelines for Ethical Review of Research Proposals for Human Somatic Cell Gene Therapy and Related Therapies. The former gave guidance on all aspects of the operation of genetic registers on the collection, use, and access to this material. The guidelines also deal with aspects of recruitment and storage of genetic material. The latter is intended to give guidance to the select HRECs that deal with gene therapy applications. In addition to the two sets of guidelines, the AHEC has published an Information Paper addressing issues of equity, resource allocation, commercialization, and counseling and testing of children in a document entitled Ethical Aspects of Human Genetic Testing: An Information Paper.

Finally, for the first time, the National Statement included a specific set of principles of human genetic research (National Statement 1999, Principles 16.116.21).

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n HREC Operating Manual

A HREC Operating Manual is in preparation, which will be in the form of annotations to the Statement providing explanation and procedural information to HREC members. It is important to note that the use of the operating manual will not be mandatory and will not prevent HRECs from developing their own operating manuals or varying any published national standard operating manual. It is anticipated, though, that an operating manual at the national level will assist the decisionmaking processes of HRECs, contributing to consistency and predictability in the operation of HRECs in Australia. The manual will be developed in consultation with HRECs and other key stakeholders and is based in part on the Kings College Manual in the United Kingdom.

n 1999 HREC Workshops

The AHEC held workshops for HRECs in 1993 and in 1995. There were many calls for another series of workshops as a means of imparting information, discussing issues, and networking for the HRECs. The fifth series of National Workshops were held in 1999 to launch the National Statement on Ethical Conduct in Research Involving Humans.

n Guidelines for the Protection of Privacy in Medical Research (1995)

The Guidelines for the Protection of Privacy in Medical Research were revised and issued under § 95 of the Commonwealth Privacy Act 1988 and provide a framework for the protection of privacy in medical research involving personal information obtained from Commonwealth agencies. The purpose of the guidelines is to ensure that such personal information is protected against unauthorized collection or disclosure.

n
  
Ethical, Legal, and Social Implications Program for the HUGO Human Genome Meeting 1999, Brisbane, Australia

The AHEC was invited to develop the ethics program for the HUGO Human Genome Meeting (HGM 1999) held in Brisbane, Australia in March 1999.

n Cloning of Human Beings

In January 1998, the Commonwealth Minister asked AHEC to provide advice on the ethical issues and the need for further pronouncement or possible legislation regarding the cloning of human beings.

This advice was published in a report to the Minister entitled Scientific, Ethical and Regulatory Consideration Relevant to Cloning of Human Beings (AHEC 1998).

n Xenotransplantation

Given the national and international interest in the possibility of xenotransplantation, the AHEC was asked to consider issuing ethical guidelines on the subject. In view of the risk of rejection and possibility of transmission of unknown infectious agents from animals through immuno-compromised hosts into the general community, the AHEC sought scientific advice from the Research Committee of the NHMRC to clarify the potential risks and benefits before considering necessary action.

5. The National Statement on Ethical Conduct in Research Involving Humans

5.1 Background to the National Statement

The report on IECs (Chalmers 1996) recommended that the AHEC should redraft the Statement on Human Experimentation and “…change its title so that all health investigation involving humans (including non-biomedical research and innovative practice) was encompassed (Recommendation 5.3.1).

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The review process incorporated not only the advice in the submissions made but also a number of developments, documents, and practices that may be briefly summarized as follows:

There was a perceived need to take into account international considerations in introducing the new National Statement. Submissions received by AHEC during the public consultation processes included increasing references by researchers, organizations, and community groups to overseas research guidelines, international conventions

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and treaties, and international practices. The Australian Government, with the consequent implementation obligations had signed some of these Conventions and Treaties. The most notable of these international developments were as follows:

5.2 The National Statement and Its Nationwide Application

In 1999 the NHMRC concluded its public consultation on a new National Statement for Ethical Conduct in Research Involving Humans (National Statement 1999). The report on IECs had recommended that The NHMRC in conjunction with other peak bodies responsible for research and clinical practice (Australian Research Council, Australian Vice-Chancellors Committee, Australian Medical Council) should promulgate guidelines representing a national statement for the ethical conduct of research (Recommendation 5.2.2.). This was achieved during late 1998 and the first half of 1999, and the Statement was also endorsed by all the national funding agencies, universities, and the learned academies. This is the first time that all research funding agencies, universities, and learned academies have subscribed to a single national code of conduct for the ethical conduct of research involving humans. Importantly, this statement has continued to include a section on clinical trials, which was the subject of considerable comment by researchers, the Australian Pharmaceutical Manufacturers Association, institutions, and consumer organizations. The predecessor Statement on Human Experimentation 1992 contained a Supplementary Note 4 that dealt summarily with key elements of clinical trials.

     The National Statement applies universally to all disciplines of research involving humans. The guidelines includes new sections on human genetics research, use of human tissue samples, emergency care research, and some additional guidance in relation to multicenter trials and modified composition of HRECs. This is a significant step in promoting a uniformly high ethical standard for all research involving humans.

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5.3 The Contents of the National Statement

Comments are made in this section in relation to parts of the National Statement to provide some background rationale for the Principles.

     Purpose of the Statement. The Preamble to the National Statement notes that the purpose of the Statement is to provide a national reference point for ethic consideration relevant to all research involving humans. All major bodies involved with human research have endorsed the National Statement. Not only symbolically, but also actually, the National Statement will serve the major national reference point in the future development of research ethics involving humans in this country. If this goal is achieved, it is hoped that not only will there be simplification in place of many differing codes but also improvement in the quality of ethical consideration through uniform standard setting.

     The Principles to be Applied. The National Statement includes a more detailed summary of the Principles of ethical conduct than the former Statement of Human Experimentation (Brody 1981; Engelhardt 1986; Beauchamp and Childress 1994; Pellegrino and Thomasa 1996). It is intended that the General Principles (Principles 1.11.21) will assist in the interpretation of the other parts of the National Statement. Integrity of the researcher is placed at the forefront of these principles. Respect for persons and beneficence are expressed in traditional forms, but the well-being of the participants takes precedence over expected benefits to knowledge, and researchers have a responsibility to minimize risks of harm or discomfort to research participants. For the first time, the principle of justice is included and requires fair distribution of benefits and burdens of participation in research; avoidance of unfair burden by participation; fair recruitment of research participants; and avoidance of discrimination in the selection of participants. The Operating Manual when published will explain the intention of these important principles, which are intended to address concerns about over-researching of particular groups, questionable recruitment practices for participants, and applying selection criteria for the participants which may, in effect, discriminate. The focus, in this respect was on the process of research rather than the results of the research. The National Statement focuses on the dissemination of such findings but does not oblige researchers, sponsors, or others to actually distribute research benefits among the participants.

     HRECs (Principles 2.1–2.5). The National Statement attempts to achieve further development of the established ethics review system. A clear responsibility is established for institutions to establish and properly resource HRECs. Institutions are now required to set clear Terms of Reference for the HREC. If, for example, the HREC is to undertake policy or educational tasks as well as the primary research review function, these additional functions must be provided for in the Terms of Reference. In addition, the institution is required to accept expressly the legal responsibility for the members of the HREC while they are acting within the scope of their approved functions. Where researchers are not affiliated with a particular institution, institutions are encouraged to accept these projects for consideration by the HREC. The aim of this provision is to try to ensure that all research conducted in this country is under the umbrella of the protectory research ethics review system.

     Membership of the Committees (Principle 2.62.9). No longer are medical graduates required to form the core membership of a HREC. There is now provision to appoint a person with knowledge of and current experience in the research that is regularly considered by the HREC. Thus, if the research considered by the HREC is social science, then the person appointed should be knowledgeable and experienced in social science research. Second, the core membership has been expanded by the inclusion of a person with knowledge of or current experience in professional care, counseling, or treatment. This person was seen as offering additional insights into the way in which research participants may view a research project and the way in which it impacts upon them. This does not have to be a doctor, but can extend to a psychologist, nurse, social worker, or the like depending on the type of research considered by the HREC.

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     From time to time suggestions have been made that some members of a HREC should be appointed solely for the purpose of representing the research participants (McNeill 1993). This view is misconceived in the sense that all members of a HREC are required to protect the welfare and rights of the research participants.

     In addition, the National Statement includes a requirement that institutions should be mindful of institutional and noninstitutional balance in the membership of their HRECs. The National Statement requires that any increase in the core membership of the HREC should retain this balance. This provision was included to address difficulties that have arisen under the old IEC system. Many of the old IECs had, in addition to the five core members, a membership of between 12 to 15 members (See Section 3.2 of this report). Many of these additional members were appointed for research expertise resulting in lay members being in the minority. Institutions must, if membership is increased, maintain the balance of core membership to new members. For example, if another researcher was to be appointed the institution may very well wish to appoint a further lay person.

     HREC Meetings (Principles 2.152.24). A number of new provisions are included in relation to meetings for HRECs. The HREC may now invite a researcher to attend to provide advice to the HREC. This formalizes the procedure, which had developed in some IECs. Importantly, a HREC must proceed to deliberate without any conflict of interest by any member. It is the responsibility of HREC members to announce any conflict of interest, which may affect the independence of their decisionmaking. HRECs may seek expert scientific advice on a research protocol. This procedure was introduced to address concerns by many researchers that HRECs were spending too much time deliberating on the scientific rather than ethical aspects of research protocol. As there is no neat division between scientific aspects and ethical aspects of research, the National Statement directs the HRECs attention to their ethical function but recognizes from time to time that research protocol may require explanation to illuminate the ethical issues involved. Researchers are now required to disclose any funding or any financial interest, which they may have which may be related to the project. A HREC must then decide whether its disclosure in any way affects any relevant ethical considerations in the protocol.

     Monitoring (Principles 2.332.38). The previous Statement on Human Experimentation was amended in 1992 to recognize the responsibility of ethics committees or monitoring research. The new National Statement includes Principles requiring the HREC to monitor research. The Principles also recognize that the primary responsibility rests with the institution. In addition, the frequency and type of monitoring which is carried out in relation to research protocol should reflect the relative degree of risk to the participants. In this way, HRECs are encouraged to concentrate on riskier protocols. HRECs are required to receive reports of anything that might warrant review of the original ethical approval or anything which may result in the early discontinuance of the research.

     These Principles were intended to address growing concerns among members of ethics review committees that they have neither the expertise nor the resources to conduct effective and timely monitoring of research. Many institutions and ethics committees had, during the 1990s, developed tailored monitoring mechanisms, which, as a matter of fact, reflected the degree of risk involved. The National Statement reflects this development and requires HRECs to implement appropriate monitoring mechanisms dependent on the risk involved in their research protocol.

     Expedited Review and Multicenter Research (Principles 3.33.7). For the first time the National Statement has formalized expedited review for minimal risk research. Recognizing the growing burden on HRECs, the National Statement permits a HREC to nominate classes of research, which may be reviewed in an expedited fashion by the Chairperson and later ratified by the full Committee. However, the National Statement does not permit risky or ethically controversial research to be subjected to expedited review.

     The National Statement for the first time sets up two procedures for handling multicenter research. First, HRECs are now permitted to communicate with other HRECs; to accept scientific assessments of other HRECs;

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to adopt the reasons and ethical decisions of other HRECs; to adopt any procedures of another HREC with a view to avoiding duplication; and to agree on common monitoring responsibilities. Second, there is now a formal procedure, which allows HRECs and institutions to agree before the start of a multicenter research project to nominate the primary, ethical and scientific assessment process subject to the approval of the other participating institutions and HRECs. These informal and formal multicenter research procedures are intended to address complaints by researchers about delays and inefficiencies in ethical review. Frequently, researchers complained that HRECs were more engaged in difficulties about procedure or documentation rather than points of ethical substance. These procedures are intended to facilitate multicenter research without in any way compromising proper ethical safeguards. In both New South Wales and Victoria efforts are now in progress to develop common application forms and systems to allow multicenter research procedures to be implemented (Kelly and Boyages 1999).

     Special Categories for Protection (Principles 47). The National Statement includes specific Principles intended to protect participants who are either vulnerable or at greater risk. In the case of children and young people, research should only be permitted where their participation is indispensable and the physical, emotional, and pathological safety of the children and young people are ensured. As with other like categories, a HREC should not approve the research where it is contrary to the child or young persons best interests. Similar provisions apply to research projects that involve participants with an intellectual or mental impairment.

     The National Statement recognizes that those in highly dependent medical care situations (emergency, intensive, neo-natal intensive and terminal care) may be unconscious or otherwise impaired in their capacity to communicate. In such cases, it may not be possible for the researcher to obtain consent to the research. However, in these circumstances there may be greater risk of coercion and undue burdens from involvement in research. HRECs, in these cases, may allow the research to be conducted provided it is generally not contrary to the patients interests; the research is therapeutic; the risks are no greater than those involved in accepted treatment; and there is a reasonable possibility of benefit over standard care. In addition, the patient, guardian, or family is informed as soon as possible of the option to withdraw.

     Recognizing the pressures that can be brought to bear in the workplace, education, or in institutions, the National Statement recommends that HRECs should exercise extra care when considering research where there are dependent or unequal relationships. In these cases, the HRECs should be satisfied that the consent is, in fact, voluntary and that no discrimination should follow where a person refuses.

     Research on Collectivities (Principle 8). The National Statement includes principles to cover research involving collectivities. Collectivities are defined to include those with common cultural, customary, social organization but not extending to clubs or associations. The term was proposed by the Canadian Tri-Council Code and was considered a helpful contribution to understanding research among the multicultural communities of Australian society. In essence, research in collectivities requires, as well as individual consent, consent by the collectivities recognized legally. In addition, researchers must satisfy a HREC that the customs and beliefs of that collectivity will be respected.

     Aboriginal and Torres Strait Islander (Research Principle 9). Interim Guidelines were introduced by the NHMRC in 1991 before the establishment of the AHEC. During the public consultation, differences were expressed in this area. Some submissions expressed satisfaction with the existing Interim Guidelines, others suggested new Guidelines and others suggested that the proposed principles on research involving collectivities were sufficient to include Aboriginal and Torres Strait Islander people. The Interim Guidelines have been continued in force, and the Interim Guidelines will be reviewed in the future.

Clinical Trials (Principles 12.112.13). This topic is discussed in greater detail in Section 6 of this report.

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     Innovative Therapy. Innovation is a major part of good clinical practice. The medical practitioner is given freedom to vary standard treatments to find the best and most appropriate treatment regime for his/her patient. The integrity and professional responsibility of the medical practitioner define the limits to the use of this clinical freedom. The Ministerial Review recommended that a guideline be introduced to regularize practice in this area (Chalmers 1996). The National Statement includes a principle that any systematic investigation or innovation to determine efficacy should be considered as clinical research and referred to a HREC for approval. The purpose of this guideline is to permit and encourage clinicians to seek HREC advice and approval where researcher innovation is in fact, being conducted (see Section 3 of this report).

     Epidemiological Research (Principles 14.14.13). The National Statement includes a number of new principles to facilitate epidemiological research while maintaining proper protections for research participants particularly in relation to privacy. First, the National Statement distinguishes epidemiological research from conventional public health surveillance of public health records by authorized public servants. This definition was included to address concerns by State and Territory government departments in increasing requests for access to records under their control.

Second, the National Statement includes 3 categories of data:

Confusion has arisen in recent years in Australia with access to coded information. On the one hand, researchers complained that HRECs set unrealistic and impractical consent requirements in relation to their projects. On the other hand, HRECs are reflecting growing community concerns about privacy and access to personal records. This schema of identified, potentially identifiable, and de-identified data aims to assist HRECs to focus on projects that involve identified or potentially identifiable information. The first category is straightforward. Potentially identifiable information refers to information that is coded and may easily be translated into identified information. In addition, the term potentially identifiable refers to small population groups (by region or by disease indications) which may be identified by reference to other sources, e.g., post code.

     Third, where potentially identifiable data is used by a HREC, the HREC should generally require that once the linkage has been established, the information should be coded and placed in secure storage.

     Fourth, these principles permit a HREC to approve access to data without consent when the consent process is likely to cause unnecessary anxiety or prejudice to scientific value and there is no disadvantage to participants. The HREC may also grant access without consent where it is impossible in practice to gain consent because of the numbers involved or accessibility to them. In either of these cases the HREC must again be satisfied that the research interest outweighs to a substantial degree interest in privacy. This expression is used in the Commonwealth Privacy Guidelines in relation to research conducted using Commonwealth data. The expression is also to be used in the new public sector guidelines produced by the Commonwealth Privacy Commissioner. It is used in these Guidelines to develop a consistent approach to personal privacy and research.

     The privacy principles were included to address directly researchers concerns about HRECs setting unrealistic consent requirements in relation to large data sets. The principles also require any new use of the data for a new research project to be resubmitted to a HREC for a new approval. In addition, if clinical knowledge is disclosed to researchers during the research project that information should be made available to health authorities and where possible to participants or their medical practitioner.

     Finally, the general principle that research results be disseminated is qualified by further requirement that the results should not identify the participants and should respect cultural sensitivities.

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     Human Tissue (Principles 15.115.9). For the first time the National Statement includes principles for the use of human tissue in research. The use of human tissue samples in medical research raises compliance issues with both ethical and legal standards (Magnusson 2000). Samples are defined to include diagnostic, statutory (e.g., Coroners Inquiry), and research samples not including fetal, reproductive, or autopsy tissue. Institutions are requested to develop policies for research on tissues related to the source, nature, cultural sensitivity, and reason for collection in the purpose for the research. Generally, consent is required for the use of a persons tissue. Where there is follow-up research, the new research should be presented for new approval by a HREC. Consistent with the principles in epidemiological research and genetic research, a HREC may waive consent having regard to the following considerations:

These principles are expressed in relatively general terms. They represent the first step in setting a direction for the more regulated use of human tissue and research. This is a sensitive area where there are public concerns about coronial powers to dispose of human tissue, commercial access to samples, and retention of samples without an individuals knowledge or consent.

     Genetic Research (Principles 16.116.16). A special Working Party was convened to prepare these principles which were developed in close consultation with community groups, professionals, and the Human Genetics Society of Australia. After outlining the special aspects of genetic information and its capacity to stigmatize, HRECs are requested not to approve research with contestable or dubious scientific merit. HRECs are reminded that much genetic research at this stage will be more likely to contribute to knowledge rather than products and treatment. For this reason research proposals must be balanced against the potential for risk to individuals. Research results are to be carefully stored to ensure privacy, and researchers are required to state whether the information will be kept in an identified, identifiable, or de-identified form. Generally, the consent of participants will be required and researchers are required to inform them:

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Consistent with the principles on epidemiological research and human tissue, a HREC may waive consent having considered a number of matters (essentially the same considerations as above under Human Tissue). There are also requirements that the institution conducting research has access to current genetic counselling services for the benefit of the participant.

     Deception (Principles 17.117.2). The National Statement recognizes that some research; for example, psychological research involves deception pursuant to purpose or covert observation of individuals. HRECs should approve such research only as an exception where the research cannot be conducted without deception. In these cases a HREC may approve if it is satisfied that:

Privacy (Principles 18.118.5). The Commonwealth Privacy Act 1998 includes a number of Information Privacy Principles defining the proper collection, detection, use, access, challenge, and amendment of privacy information. This Commonwealth Act only refers to information held by a Commonwealth Department or its agency. However, for the last ten years many HRECs have used the Information Privacy Principles as standards for privacy protection for research involving information held by agencies other than the Commonwealth. In this respect the highly unsatisfactory patchwork of Australian law in this area has been remedied to a degree by the practice of some HRECs. The National Statement sets very general Guidelines for the protection of privacy. This is clearly an area, which will require further legislative and guideline development in the future. The privacy of personal information is to be protected using the Information Privacy Principles as a standard.

     There is a specific Section 95 in this Act that requires Commonwealth agencies to report to AHEC where the HREC has released information without the consent of the individuals concerned (and in breach of any Information Privacy Principle) but is satisfied that the public interest in the research outweighs, to a substantial degree, the public interest in the protection of privacy (NHMRC 2000).

6. Some Matters for the Future and the New National Statements

Ethical review in this country remains, as elsewhere in the world, in a revolutionary stage. Ethical standards in the review of research were never envisaged as constant. For example, in the introduction to the Declaration of Helsinki it was stated that the guidelines should “…be kept under review in the future. The Declaration was adopted by the 18th World Medical Assembly, Helsinki, Finland, June 1965 and amended in Tokyo 1975, Venice 1983, Hong Kong 1989, and the Republic of South Africa 1996. The Declaration is currently under review (Bulletin of Medical Ethics 1996) The Australian research guidelines have been regularly reviewed. This section briefly outlines a number of matters, which are likely to command attention in the near future. These matters are clinical trials, the development of a clinical trial register, multicenter research, expedited review, and monitoring of research.

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6.1 Clinical Trials

Clinical trials are likely to command greater international public attention. In recent years there has begun a steady stream of media and academic revelations about certain trials.

Clinical Trials in Australia: Some Background. Before examining the new clinical trial guidelines, some background may be useful (AHEC 1992). Until 1983, sponsors of all clinical trials involving imported products were required to obtain Federal approval prior to the initiation of the trial. Pharmaceutical chemistry, preclinical, and clinical data were required in the same detail as that required to support applications to market a new chemical entity. In February 1983, review times were changed to 45 working days for early phase trials (Phase I and IIa) and 80 working days for later phase trials. In addition, a degree of deregulation was introduced in that sponsors were permitted to undertake additional trials without Federal review of the subsequent protocols, provided that the trial was within the approved dosage range and duration of treatment. Each trial required approval by the IEC of the host institution, and sponsors were required to notify the Federal agency at the time of approval by a HREC.

     The TGA is a Commonwealth organization responsible for the registration of therapeutic goods including drugs and devices. The TGA conducts monitoring of licensed manufacturers who must comply with the Code of Good Manufacturing Practice; in addition, the TGA tests drugs and devices, reports and acts on problems, and ensures fair and truthful advertising (Therapeutic Goods Act). The scheduling of drugs is usually conducted under the various drug legislation of the States and Territories. In August 1987, revised procedures for review of clinical trials were introduced incorporating the concepts of a Clinical Trial Exemption (CTX) scheme under which the trial was permitted to proceed if no objection was raised by the TGA within a given time frame.

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Under these arrangements, consideration of the essential safety aspects of a product proposed for use in a clinical trial remained a Federal responsibility, and consideration of the inter-related protocol was the responsibility of the HREC at the institution(s) at which the trial was to be conducted. The scientific validity of the study and the ability of the researcher and institution to effectively carry out the particular study were to be included in the HRECs consideration of ethical aspects of the trial.

     The CTN Scheme. In the early 1990s following the publication of the Baume Report the centralized system of approval for drug trials was replaced with a devolved approval system. HRECs were given the option of approving drug trials under the CTN. At first, there were considerable concerns about the implementation of this new scheme particularly in relation to potential legal liability (Day 1993). However, the implementation of the scheme has been realized through a process of self-selection under which only HRECs in large hospitals are now undertaking significant involvement in the CTN process. In the early 1990s it was recognized that there had been a major increase in the workload of those IECs that had undertaken this type of work (Chalmers 1996). In May 1991, links between clinical trials in Australia and marketing applications were severed. This allows clinical trials to be conducted while an application for registration for marketing is under review and vice versa.

     The introduction of the CTN Scheme at the same time allows for drugs to be released for clinical trial purposes, provided authorities are notified of the trial beforehand and the trial is approved by the ethics committee of the hospital or university where it is to be conducted. Only HRECs complying with the National Statement (National Statement 1999), particularly Principles 2.12.48 on HRECs, are able to participate in these arrangements.

     The main impact of the deregulation of clinical trials, from the point of view of HRECs, has been an expansion of their tasks and responsibilities to include the assessment of toxicological and safety data for trials submitted under the CTN Scheme. This was the subject of a specific review of the introduction of the CTN Scheme which was completed in 1993 (Day 1993). HRECs expressed particular concern over possible legal liability in administering these schemes and the need for appropriate indemnity. Of particular concern was the fact that some HRECs did not have the expertise to assess pharmacology or toxicology data. The responsibility of HRECs was reflected in the Therapeutic Goods Regulations as amended by the Therapeutic Goods Act. This provides that the institution which is responsible for conducting the trial must take advice from the IEC (now HREC) on the conduct of the trial, give approval to the trial (the institution may be responsible for more than one site), set terms of approval for the trial which are no less restrictive that the ethics committees advice, and withdraw approval for the trial if the ethics committee advises that continuation of the trial is not appropriate.

     The move to using the CTN Scheme has been steadily increasing. By mid-1999, the TGA reported that some 1,500 were proceeding under CTN and only 10 under the CTX (information provided by Manager of TGA to AHEC, July 1999). In essence the CTN is a deregulated system where all responsibility for the trial rests with the institution, and notification only is given to the TGA about the conduct of the trial. On the other hand, under the CTX Scheme the TGA remains responsible for the safety aspects of the product and charges fees for this service.

     The National Statement Principles. The new Australian National Statement (National Statement 1999) is a comprehensive and uniform set of guidelines which includes general principles and sections (Principles) on many aspects of research (e.g., epidemiological research, genetic research, use of human tissue, psychological research, and multicenter research). The National Statement includes more detailed guidelines of the establishment, composition, operation, functions, and duties of HRECs.

     The National Statement includes a section dealing with clinical trials, which are defined to apply to natural therapies and other interventions. The previous Statement on Human Experimentation included a supplementary note on clinical trials but in considerably less detail than the National Statement. The introduction to Principles 1212.112.13 states:

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A clinical trial is a study involving humans to find out whether an intervention, including treatments or diagnostic procedures, which it is believed may improve a persons health, actually does so. A clinical trial can involve testing a drug, a surgical or other therapeutic or preventive procedure, or a therapeutic, preventive or diagnostic device or service. Any intervention, including so-called natural therapies and other forms of complementary medicine, can be tested in this way. Other related disciplines also conduct research, which involves similar ethical considerations to those raised in clinical trials.

In pharmaceutical and medical device trials there are established codes of good clinical research practice which define clearly what is meant by a clinical trial for those purposes.

12. Clinical Trials has principal application in the context of biomedical clinical trials but should also apply to any other intervention claiming therapeutic benefit, wherever provided or conducted (emphasis added).

The trial must be properly designed and conducted and be approved by a HREC. The HREC that considers the clinical trial is not required to judge the actual science involved. Rather the HREC must ensure that it is “…sufficiently informed on all aspects of a research protocol, including its scientific and statistical validity(National Statement 1999, Principle 2.8). Principle 12.1 goes on to state:

The aims of every trial must be precisely stated in a protocol presented to and approved by a Human Research Ethics Committee (HREC) and every trial must be conducted by researchers with suitable experience, qualifications and competence and, where applicable, adequate training in relevant procedures including the use of any device being trialed.

See also Principle 12.2, which gives details on scientific hypothesis and methodology.

     A HREC, before granting approval to a clinical trial, must be satisfied that the protocol conforms to a number of international obligations in addition to the National Statement as well as relevant Australian laws. The Code of Good Manufacturing Practice issued by the TGA is broadly similar to many equivalent documents in other countries (TGA 1991). In addition, it is recognized that Australian researchers may be involved in multi-center international trials. Indeed, in the case of American trials, Australian researchers are required to comply with American regulations promulgated by the FDA. There was a quite deliberate intention in the revision of the National Statement to ensure consistency with established international guidelines. In this regard, Principle 12.3 of the National Statement provides:

An HREC, before granting approval to a clinical trial, must be satisfied that the protocol conforms to:

(a)
  
this Statement;
(b)
  
the World Medical Association Declaration of Helsinki;
(c)
  
where relevant, the CPMP/ICH Note for Guidance on Good Clinical Practice (CPMP/ICH-135/95) and the ISO 14155 Clinical Investigation of Medical Devices and the requirements of the TGA;
(d)
  
any requirements of relevant Commonwealth or State/Territory laws.

Principles 12.12 and 12.13 also refer to relevant standards.

     The National Statement also includes a specific guideline on the acceptable uses of placebos in clinical trials and, essentially, outlaws their use where there is an effective treatment available (National Statement 1999, Principle 12.4). There was considerable discussion in relation to this particular guideline. In the end the AHEC, in publishing the guideline, preferred the view that it is difficult to create a research project (testing a

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hypothesis when there is a treatment available which has been clearly shown to be effective). To ignore a proven effective treatment breaches the medical practitioners duty to provide best available treatment to the patient.

12.4

The use of a placebo alone or the incorporation of a non-treatment control group is ethically unacceptable in a controlled trial where:

(a)
  
other available treatment has already been clearly shown to be effective; (emphasis added) and
(b)
  
there is risk of significant harm in the absence of treatment.

If there is genuine uncertainty about the net clinical benefit of treatment, a placebo controlled trial or a trial with a no-treatment arm may be considered.

Apart from general guidelines against conflict of interest, (National Statement 1999, Principles 1.1 and 2.20) researchers are required to declare financial or business interests in relation to the clinical trial presented for approval before the HREC (National Statement: 1999, Principles 12.5 and 12.6). A researcher is not required to disclose every interest to research participants; rather, a HREC is required to examine the budget of the clinical trial and consider aspects of the budget that raise ethical issues. The HREC then decides whether any information in relation to the financial aspects of the trials should be declared to participants.

12.5

A researcher must inform an HREC of any business or other similar association which may exist between a researcher and the supplier of a drug or surgical or other device to be used in the trial.

An HREC must examine those aspects of the budgets of clinical trials which raise ethical issues, including capitation fees, payments to researchers, institutions or organisations involved in the research, current and consequential institutional or organisational costs and costs which may be incurred by participants. It should be satisfied that:

(a)
  
payment in money or kind would not cause researchers to apply pressure to individuals so as to obtain their consent to participate;
(b)
  
payment in money or kind could not influence the findings of the research;
(c)
  
there will be disclosure to the research participants of relevant aspects of those budgets; and
(d)
  
funding is sufficient to conduct and complete the trial so that participants are not disadvantaged by premature cessation.

12.6

Since the early 1990s the NHMRC has published guidelines requiring HRECs to review the compensation arrangements for the trial (NHMRC 1994). Principle 12.7 of the National Statement provides that compensation arrangements must be in place for participants who may be injured in the trial.

12.7

An HREC must be satisfied, before approving a clinical trial, that arrangements exist to ensure adequate compensation to participants for any injury suffered as a result of participation in the trial.

There are, finally, guidelines about the reporting of all serious or unexpected adverse events, review of the trial, suppression of the trial, and privacy of findings (National Statement 1999, Principles 12.812.11).

     The new Principles have deliberately aimed to put greater responsibility on the HREC that approves a trial, the reality being that the preponderance of Australian clinical trials of drugs and devices are performed under

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the terms of the CTN Scheme. In summary, the HREC must be satisfied that the trial is properly designed (including methods of recruitment and statistical significance). The HREC must also decide whether the trial conforms with the international standards where relevant (CPMP/ICH 1995). Placebos should not be used where they are already proven effective available treatment. In addition, conflicts of interest must be declared, funding arrangements reviewed; compensation arrangements put in place; all serious or unexpected adverse events reported by the researcher; the trial monitored and reviewed; and information on the trials kept in a durable form to protect privacy. The monitoring of trials and research generally has been a continuing difficulty in Australia (Chalmers 1996).

     Again, the new Principles are only a start and further questions remain for consideration for the further development for ethical clinical trials. For example, should the same rules apply where the trial involves an entirely new procedure, e.g., malaria vaccine, where new knowledge is being developed and the risks attaching to long-term effects are quite unknown or unpredictable at this early stage? Should there be different rules for autologous immuno-therapies and certain types of oncological gene therapies where the patients are usually suffering from terminal illnesses? Should there be a separation of drug trials conducted in the public institutions as opposed to those conducted in private institutions? Should special rules apply to trials conducted by the doctors in general practice whose primary duties to the patient may conflict with any research protocol in which the doctor is involved? Should different rules apply where the trial involves blood or tissues on which genetic information is to be gathered? This is not a comprehensive list but illustrative only (Mant 1999)

6.2 Other Matters

Development of a Clinical Trial Register. The report of the Review of the Role and Functioning of Institutional Ethics Committees supported the implementation of a clinical trial register in Australia. The report stated that a national register of statistics and data would enable the effectiveness of particular interventions to be monitored over time and would facilitate the effective monitoring of clinical trial operations. This database will be a useful information resource for HRECs and will reduce duplication of efforts. The proposal has appeared from time to time in the pages of the Medical Journal of Australia and was part of the official submission of the AHEC to the Wills Review (Wills 1999). A central Clinical Trial Register would track the results of all trials, not simply the results that are later published in official journals. In this way the poor as well as the best results would be recorded and a proper assessment of the level of clinical trials could be maintained.

     The NHMRC Clinical Trials Centre is an NHMRC funded center at Sydney University, with Professor John Zynes as director. At present it has a voluntary system of registration for cancer research only. The benefits of expanding this role to include all clinical trials would significantly add to community confidence and support for research. Data from these clinical trials would significantly assist the long-term follow-up of participants of clinical trials.

     Training. Training and continuing education are key elements in the effort to increase the responsiveness of the ethical review system. The continuing professionalising of HRECs requires the introduction of formal accredited courses. For a number of years the Monash Bioethics Centre ran annual residential seminars for HREC members. In recent years other course providers have advertised in their programs. The AHEC has not begun to formally accredit these courses.

     HRECs are becoming increasingly concerned about legal aspects of protocols. Often protocols cross legislative boundaries and HRECs must be sufficiently versed in areas such as privacy, guardianship, and other matters addressed in Commonwealth and State legislation. The AHEC workshops, conducted in 1993, 1995, and 1999 provided a forum for networking and information sharing but should not be seen as substitutes for certified, professionally conducted training programs.

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     A major contract was tendered by AHEC for the preparation of a HREC Operating Manual that will consist of explanatory, textual and reference annotations to the National Statement on Ethical Conduct in Research Involving Humans. The HREC Operating Manual is intended as a resource and reference for all members of HRECs, especially new members.

     Centralized System of Scientific and Ethical Review for Streamlining Clearance of Multicenter Clinical Trials. There has been an ongoing debate in a range of forums that the scientific assessment of clinical trials be undertaken centrally to streamline the process of review and to assist HRECs in focusing their deliberations on the ethical issues of the protocol (Cohen 1998; Clarke 1998; Henman et al. 1998; OBrien et al. 1998; Gandevia et al. 1998). In effect, the TGA undertakes this centralized scientific assessment under the CTX Scheme. This debate has also raised the problem of accreditation of ethics committees. The NHMRC does not currently have authority over State institutions to allow a system of HREC accreditation unless there was the necessary referral of power from the States and Territories to the Commonwealth Parliament.

     There have been many debates about a form of centralized approval for research; particularly multicenter research is desirable. Suggestions have ranged from the establishment of a peak national HREC to the establishment of regional HRECs akin to the United Kingdom LRECs or the New Zealand Regional Ethics Committees. As a matter of practice, there has been considerable and developing cooperation and collaboration between existing HRECs. The process of ethical review of multicenter trials can become complex and protracted, particularly when a number of centers are involved.

     The National Statement proposes two options to streamline the ethical review process for multicenter trials (National Statement 1999, Principles 3.13.8). First, when a project is under way, HRECs are permitted to communicate with each other; accept the scientific assessment of another body; adopt the ethical reasoning for another body; or adopt any other procedure from that body to avoid unnecessary duplication (National Statement 1999, Principle 3.4). Second, there is for the first time in Australia a formal system for initially setting up multicenter research. Under this system institutions may agree before the start of the research that “…the primary ethical and scientific assessment be made by one agreed institution or organisation…” (National Statement 1999, Principle 3.5). There have already been some efforts in some regions of Australia to streamline the scientific and ethical review of protocols (Kelly and Boyages 1999).

     Any system for centralized HREC decisionmaking must preserve local HRECs. Ethical considerations concerning the safety and scientific validity of a proposal may not differ substantially from one HREC to another; however, there may be important local issues. For example, certain institutions may be involved in research with subjects from a particular ethnic, social, or minority group, which might involve special consideration of local cultural, moral, religious, and/or ethical values. In addition, the particular institutional mission will need to be observed. This consideration would apply, for example, for hospitals of religious affiliation.

     Expedited Review and Efficiency. The recommendations elsewhere in this report to introduce expedited review will assist the HRECs in concentrating on approval and monitoring of research projects involving higher risk. Under these procedures a HREC can determine classes of research which may be subject to expedited review and confer authority on the Chair of the HREC to approve the research subject to later ratification by the HREC (National Statement 1999, Principles 2.272.29). Expedited review is not suitable for research projects with the potential for harm or where there may be some departure from ethical standards in the Statement. In these cases the full Committee must consider the project.

     The Report of the National Council on Bioethics and Human Research in Canada (Canada 1995) encourages Research Ethics Committees considering fewer than 50 research protocols to amalgamate with another or other Research Ethics Committees. In Australia there has been a substantial increase in HREC numbers. There have been suspicions expressed in some submissions that some HRECs may have been established with the researcher interests rather than the subjects in mind. The Canadian approach of amalgamation where a

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Research Ethics Committees considers less than 50 protocols was not included in the final draft of the National Statement. The Second Consultation Draft included a section inviting small HRECs to amalgamate. This was dropped from the final National Statement in the light of submissions received. Provided a HREC was properly and independently constituted, there were good reasons for the continuation of certain specialized HRECs. For example, the National Red Cross HREC considers few protocols but most are complex requiring considerable discussion by the Committee.

     Monitoring of Research. Monitoring responsibilities are constrained by resources. Recognizing this, the National Statement has recommended a strategic approach to monitoring where the frequency and type of monitoring determined by a HREC should reflect the degree of risk to participants in the research project(National Statement 1999, Principle 2.33). The National Statement includes minimum reporting and proposes that the HREC adopt “…any additional appropriate mechanism for monitoring…” provided that researchers immediately report any “…serious or unexpected adverse effects on participants; changes to the protocol; and unfit foreseen events (National Statement 1999, Principles 2.36 and 2.37). The National Statement followed the recommendations of the Ministerial Review Committee and the submissions at the Second Stage Consultation. The National Statement did not introduce a system of public monitor-officials as recommended in the United Kingdom (Neuberger 1992) or as operates in the United States with the Office of the Inspector General of the Department of Health and Human Services.

     Monitoring by a HREC is only one aspect of the overall strategy for the protection of the interests of research participants. Peer review, institutional supervision, ethical integrity of researchers, and effective information and complaints mechanisms should all be promoted to facilitate the earliest possible detection of potential harm in the course of research projects.

7 The Questions of the National Bioethics Advisory Council

7.1 What Are the Strengths and Weaknesses of Nonregulatory Systems of Protection?

The philosophical debates in bioethics rarely operate in a legislative or legal vacuum (Englehardt 1981; Pellegrino and Thomasma 1996). In most areas debated by bioethicists, governments have played a role either in the form of policy development or legal regulation (Breen 1997; Bennett 1997; Skene 1998; Freckelton and Petersen 1999). As examples, mental institutions have been governed by legislation for over a century; marriage laws have to an extent established rules about reproduction; hospitals are legally regulated and within them research is conducted and resources allocated; euthanasia has remained under the fiat of the criminal law; mass screening was a cornerstone of the public health movement and population genetics and the discredited eugenics movement have, at different times influenced governments. There is established case law in relation to doctrines of informed consent and the duty to warn in the doctor/patient relationship. Where children, the aged, the disabled, or the mentally impaired are treated the rules of consent are varied in the circumstances, the courts have a protective jurisdiction. Specific guardianship legislation may apply also in these circumstances. Finally, debates about artificial conception have led to the introduction of specific status of children legislation and restrictions on experimentation either in the form of legislation or guidelines.

     Australia has moved gradually from a self-regulatory system of research ethics review to a more regulated system. HRECs in Australia are not directly established by statute but rather, AHEC was given the responsibility for monitoring and advising on the workings of HRECs (see Section 4.2 of this report). The Australian ethical review system has the following regulatory features:

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The NHMRC is established by Commonwealth Act. The NHMRC is responsible for health and medical research funding, research guidelines and standards setting. (See section 4.1 of this report.) This Act also establishes the Council, the Research Committee and the AHEC.

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The Australian ethics review system has the following strengths and weaknesses.

7.1.1 Strengths

(a) A National System of Review of Research Ethics. Since the formal decision to establish research ethics committees in 1982, there has been a steady development toward an integrated national system of research ethics review (see Section 2 of this report). HRECs are established within institutions under the oversight and guidance of the AHEC. AHEC is the statutory national apex to the research ethics review system. The Report on IECs (Chalmers 1996) (Schedule 3 of this report provides a summary of recommendations from that report) did not recommend that specific legislation be enacted to regulate HRECs. The report considered that the HREC system was operating satisfactorily under the legislative supervision of AHEC. The report further accepted that the AHEC and the HRECs could adapt to meet future demands on the system.

     The development of the national research ethics system was particularly prominent during the 1990s (see Sections 1.2, 2 and 3 of this report). A number of events contributed to the accelerated development of the national research ethics system during this decade. Included in these events were the enactment of the National Health and Medical Research Council Act 1992 (Commonwealth), the establishment of the AHEC under this Act, the Commonwealth Ministerial determination to confer responsibility on AHEC for monitoring and advising on

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HRECs (see Section 4.2 of this report), three rounds of national workshops to consider the operation of HRECs, and the decisions by funding bodies, other than the NHMRC, to require ethics approval for human research projects (see Sections 1.1 and 4.6).

(b) Ownership. The ethics review system was not imposed but rather recognized by government. The system was introduced through the NHMRC and evolved over a number of years, the members of the HRECs and the institutions themselves have developed a sense of ownership and responsibility for the system. The accelerated development toward an integrated national system of ethics review in Australia was driven largely by those involved in the system. The National Health and Medical Research Council Act 1992 (Cth.) gave detailed prescriptions about the composition and operation of the AHEC but left the “…monitoring and advising on HRECs to be developed by the AHEC in consultation with the HRECs. This sense of ownership was built up during the 1990s in the following ways:

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Institutional Ethics Committees (AHEC 1993) confirmed that institutions had the responsibility to ensure that proper compensation arrangements were in place for research participants and that HREC members were indemnified for decisions made in the course of their work.

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HRECs and Their Advisory Role. The National Statement (National Statement 1999, Principle 2.2) provides that the institution must set up the Terms of Reference for a HREC including the scope of its responsibilities. The HREC therefore advises an institution and is not directed by the AHEC or other organization. In addition, the institution is responsible for adequately resourcing the HREC (Principle 2.1).
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HREC Membership. HRECs were originally and continue to be established by institutions. Many members of some HRECs have served as members for a number of years. These long-serving members have knowledge, experience, and expertise and are assets to the system.
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Organizational Developments. One State health authority has appointed public servants to coordinate and facilitate the work of HRECs in their area (NHMRC Annual Report 1997 at 7173). In addition, some hospitals have developed collaborative networks with other hospitals in their region. These developments were initiated by the States and hospitals themselves with the knowledge of the AHEC.
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HREC Responsibilities. The AHEC refused to take on the role as final arbiter in ethical review. From time to time during the 1990s the AHEC was called on to give advice to HRECs on difficult ethical research projects or to intervene where there were disagreements about research approval within a HREC. The AHEC consistently declined to act as a final Court of Appeal.Rather, the AHEC continued to follow a policy decision made in the first year of its establishment that AHECs role should be to give guidance as to what is ethically relevant (in a particular decision by a HREC) allowing IECs to make their own decisions(NHMRC Annual Report 1993 at 23). In such cases the AHEC always attempted to provide relevant information but declined to offer an actual opinion in relation to the project.
(c) Public Consultation. One of the strengths of the AHEC has been the two-stage statutory public consultation

requirement (see Section 4.4 of this report). The first-stage consultation operates in the same manner of any other public consultation, namely advertisements are placed seeking submissions on the subject under consideration by the AHEC. The second-stage consultation is conducted in relation to the draft guidelines prepared by AHEC in response to the submissions received at the first-stage consultation. This second stage has the following advantages:

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Third, with draft guidelines, specific submissions can be requested from specialists in given areas. It has been the experience of AHEC that many experts may not have the time to prepare an extensive submission to a public enquiry but are happy to comment on specific draft guidelines. These specialists are particularly willing to provide specialist information on parts rather than all draft guidelines.

This second stage has added invariably to the quality of the published guidelines. The National Statement is a very good example of quality improvement. The Working Group at First Stage Consultation was persuaded that it should build on the former Statement on Human Experimentation rather than copying or adopting an available international Code. The draft circulated at the second stage was substantially rewritten in response to the extraordinary number of submissions received. Importantly, the National Statement “…significantly altered many aspects of research involving humans. These changes ranged from research involving deception through to the membership and operating requirements for HRECs (NHMRC Annual Report 1999 at 70).

     Accountability. Although neither Commonwealth nor State legislation create HRECs, there are a number of ways in which the system is publicly accountable (see Section 4.5 of this report).

(d) Accountability. Researchers are at the first tier of ethical review. Researchers must present all publicly funded research for ethics approval. In addition, a substantial amount of privately funded research (e.g., within private hospitals) is also subject to the ethics review system. Almost all funding bodies now require annual progress reports including reports on any difficulty with the ethical conduct of the project. Importantly, the National Statement clarifies the various circumstances in which it is the responsibility of the researcher to report adverse events during the course of the project or to discontinue the research (National Statement 1999, Principles 1.4, 1.15, 1.17, 1.21, 2.35, 2.44, 245 and 12.8). In addition, researchers must avoid conflicts of interest and, in the case of clinical trials, are required to declare any conflict of interest to the HREC as a condition for approval. (National Statement 1999, Principle 12.5) (see Section 1.1 of this report).

     HRECs conduct the second level of ethical review and are also accountable in a number of ways within the system. HRECs are advisory and are accountable within the structures of the institution in which they are established (National Statement 1999, Principle 2.2). The HRECs are also required to report annually to the NHMRC (National Statement 1999, Principle 2.48). These HREC reports are consolidated by the AHEC, which then presents a report to the Council, which is later included in the NHMRC Annual Report presented to Parliament (see Section 4.7). The institutions which establish HRECs carry considerable responsibilities under the National Statement. The institution is required to properly resource the HREC (National Statement 1999, Principle 2.1) and must set out the HREC Terms of Reference including the scope of its responsibilities (National Statement 1999, Principle 2.2). The institution must accept legal responsibility for decisions and advice received from the HREC and indemnify its members (National Statement 1999, Principle 2.3). The institution should ensure that adequate compensation arrangements are in place for research conducted under its supervision. The institution is also required to set up proper complaints handling mechanisms for receiving and promptly dealing with complaints and concerns about the conduct of an approved research project (National Statement 1999, Principles 2.392.43).

     The AHEC constitutes the third tier in the review system. It was the express intention of the Commonwealth Parliament, particularly the Senate, to ensure that the NHMRC was an open and accountable public institution. The openness and transparency of the AHEC processes to public scrutiny arise from the following:

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A Federal Court decision, Tobacco Industry Australia v National Health and Medical Research Council, has confirmed that the AHEC is required to have regardto all submissions and must pay positive considerationto those submissions by all members of the AHEC (this ruling applies equally to all other committees and parts of the NHMRC).

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All proceedings, including submissions to the AHEC during the process of public consultation, are public documents and obtainable under Freedom of Information legislation (this does not apply when the submission is marked confidential).
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A Complaints Commissioner has been appointed under the terms of the National Health and Medical Research Council Act. The Commissioner may hear complaints in relation to any of the operations of NHMRC. In fact, to date the small number of complaints have consisted of requests for review of decisions by the Research Committee, which is responsible for funding applications for research grants. No complaint has ever been lodged in relation to the work of the AHEC. Realistically, complaints about research or research outcomes are more likely to be referred to the institution or to the HREC directly. In fact, under the National Statement formal complaints structures must be introduced by every institution establishing a HREC or handling complaints (National Statement 1999, Principles 2.3 92.43).
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The AHEC has been ready to provide public information and presentations about any reference before it and is willing to engage in debate on wider issues. The NHMRC has a media officer to handle relations with the media, and organizations tend to approach the AHEC directly. In 1998, at the height of the preparation of the National Statement, approximately 200 speeches, radio interviews, or major national newspaper interviews were conducted by the Chair or other members of the Committee.
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The AHEC as with other Committees of the NHMRC, is required to prepare an Annual Report, which is included in the overall NHMRC Annual Report that is laid before the Commonwealth Parliament.
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The AHEC is established under Commonwealth legislation and is subject to the investigatory powers of the Commonwealth Parliament. As a statutory authority, the AHEC is open to interrogation by the Committees of Commonwealth Parliament. The Senate Estimates Committee has interrogated the senior Secretariat of the AHEC and of the NHMRC in relation to its activities (see Section 4.5 of this report).
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AHEC is a statutory body within the portfolio of the Commonwealth Minister for Health and Aged Care. As such, the Minister may be questioned in Parliament in relation to the activities of the AHEC or the HRECs.
(e) National Guidelines. Under the terms of § 8(1) and (2) of the National Health and Medical Research Council

Act 1992 (Cth.), the AHEC has sole responsibility for the development of guidelines for the ethical conduct of medical research. This authority combined with the two-stage consultation process has resulted in the production of the series of guidelines with national application. In a federal system, it is difficult to achieve uniformity in legislation and policy in some areas within State and Territory authority. Similarly, uniformity in guidelines is more difficult and elusive in a largely self-regulatory medical research environment. During the early period of efforts by the NHMRC, through the Medical Research Ethics Committee, to establish a national ethics system, many organizations produced guidelines. The NHMRC had an influential but not exclusive function in producing guidelines for health and medical research. Guidelines were frequently published by a variety of funding authorities, medical colleges, and associations. It is difficult to gainsay the importance of the work by the NHMRC in moving toward national uniform guidelines. This process was finally realized and consolidated by the National Health and Medical Research Council Act. Two examples may assist in illustrating the strengths of having a central national committee with authority to publish national guidelines:

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Assisted Reproductive Technology. The Australian competence in the science of reproductive technology was not matched with equal competence in its regulation. Australian governments produced a Babel of reports in the area (Waller 19821984; Demack 1984; Chalmers 1985; Cornwall 1984; Michael 1986; NSW Law Reform Commission 19801989; Family Law Council 1985; Senate Select Committee 1986). The reproductive

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technology debate in Australia as elsewhere raised fundamental social, ethical, and legal questions about the very essence of personhood and humanness; the debate saw the clash of science and religion. There was considerable uniformity in the various Commonwealth, State, and Territory reports with respect to Status of Children (Status of Children Act 1978 (Qld)); Access to Programmes; Keeping of, and Access to, Information and Records; Counselling; Use of Donor Gametes; and Surrogate Motherhood.

In two major areas, there were substantial differences in the conclusions in the reports. These were Research and Experimentation on Embryos and Control and Regulation. Three States in Australia introduced committees to deal with decisions in the area of reproductive technology. These States were in order, Victoria, South Australia, and Western Australia. The Victorian Parliament passed the Infertility Treatment Act 1995 (successor to the Infertility [Medical Procedures] Act 1984), but the Act was not proclaimed for some years afterwards. The relevant legislation in South Australia is the Reproductive Technology Act 1988 and in Western Australia, the Artificial Conception Act 1985.

When the AHEC was set up in 1992, a reference was reserved by the Commonwealth Senate that required the AHEC to consider the publication of guidelines in the area of reproductive technology. The NHMRC published specific guidelines entitled the Ethical Guidelines on Assisted Reproductive Technology 1996 (AHEC 1996). These Guidelines applied uniformly and were later accepted by the Reproductive Technology Accreditation Committee (RTAC). The RTAC is a voluntary organization funded by the Fertility Society of Australia, which accredits centers offering such services. Once the RTAC accepted the AHEC Ethical Guidelines on Assisted Reproductive Technology, they formed part of its Code of Practice for centers using IVF and related reproductive technologies.

In effect, therefore, the nonlegislation States were practically and uniformly covered by the AHEC

Guidelines.The Reproductive Technology Councils in South Australia and Western Australia also approved the AHEC Ethical Guidelines on Assisted Reproductive Technology, thus achieving new uniformity in approach to research in the area.

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National Research Guidelines. The National Statement on Ethical Conduct in Research Involving Humans has been endorsed by the other major public research funding organizations, the Australian Research Council, the Australian Vice ChancellorsCommittee representing all universities, and the Learned Academies (the Australian Academy of Humanities; the Australian Academy of Science; and the Academy of the Social Sciences in Australia and supported by the Academy of Technological Sciences and Engineering. In addition, a number of other associations are in the process of replacing their particular guidelines with the National Statement. This has been a most significant advance in the path toward uniformity in guideline development.
(f) A National Committee. The AHEC also has a representative function for Australian medical research ethics

in overseas forums. Following the initial invitation of NBAC, the Summit of National Bioethics Commissions was convened in San Francisco in 1996 and again in Tokyo in 1998. Many countries have appointed national bioethics commissions, although there is far from being comparability in jurisdiction, terms of reference, resourcing, status, and guidelines. The meeting in Tokyo agreed that there were matters of common interest between the various commissions. In particular, it was noted that clinical trials (discussed elsewhere in this report) were an area likely to command public international attention. Developments in the last two years have proved this view to be prophetic. The issue of clinical trials has commanded further public attention with the debates within the World Medical Association to revise the current wording of the Declaration of Helsinki. The amendments proposed by the American Medical Association would include a new Article 18, Access to Health Care, in the following terms:

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In any biomedical research protocol, every patient-subject, including those of a control group, if any, should be assured that he or she will not be denied access to the best programme, diagnostic, prophylactic therapeutic method which would otherwise be available to him or her. This principle does not exclude the use of a placebo on non-treatment control groups with such a justified or scientifically and ethically sound research protocol.

Arguably, the proposed changes to wording may lead to ethical export where developing countries may be used for the conduct of clinical trials where lesser ethical standards are applied than in developed countries (Nuffield Council on Bioethics 1999; Healy 1999; Bulletin of Medical Ethics 1999b). This would not replace but complement the work which is currently under way with the development of international standards represented in the CPNC/ICH Note for Guidance on Good Clinical Practice (13595).

     The AHEC has, on behalf of the NHMRC, sent comments to the World Medical Association consultation. Equally, national bioethics commissions are in the position to liaise with other national bodies to provide information to contribute to the development of improved ethical trials.

7.1.2 Weaknesses

A number of weaknesses can be identified within the current ethical review system in Australia as follows:

(a) Enforcement. § 8(1)(ii) of the National Health and Medical Research Council Act authorizes the AHEC to develop medical research guidelines and for the Council to issue those guidelines in the form developed by the AHEC. Infringement of any Principle in the National Guidelines does not constitute a prosecutable legal offence. The sanctions for infringement of the Principles involve the loss of access to or withdrawal of research funds. In practice, this has been threatened on a number of occasions and is treated most seriously by institutions. For example one major metropolitan hospital was noncompliant for part of a year of report. Senior officers from the hospital were granted time to reconsider and ratify noncompliant decisions by the HREC. This particular incident resulted in the review of the sanction procedures of the NHMRC. In particular, a show cause opportunity was introduced into the procedures. In another example a major national research institute is required to reconvene with a compliant HREC and reconsider de novo decisions dealing with a noncompliant period. With the statutory requirement for the NHMRC to report annually to Parliament, the NHMRC could name guideline infringers in the report tabled before the Parliament (this has never been done to date).

     At one time there was a deal of criticism of the NHMRC for being in-house and lacking any teeth to prosecute. In defence of the NHMRC, this view confuses police-style prosecutions for anti-social criminal behaviour with the promotion and maintenance of ethical standards in an otherwise orderly research community. It is the difference between as police person patrolling on the assumption that crime is breaking out as opposed to the fire service, which attends when the unexpected fire breaks out (Chalmers and Petit 1998). It is the latter analogy that is more applicable to health and medical research. Nevertheless, the enforceability question is raised frequently by the medical and in the public forum.

(b) Uniformity and Complimentarity. In some areas the AHEC has produced national guidelines with national remit. In other areas, the guidelines have not applied uniformly. For example, as noted above the Ethical Guidelines on Assisted Reproductive Technology form a de facto national code in all States except Victoria, where the Infertility Treatment Act 1999 (Vic) overrides the Ethical Guidelines. However, the legislation in the three States (Victoria, Western Australia, and South Australia) have different provisions in relation to human cloning. This will be a barrier to uniform legislation or AHEC guidelines.

     In late 1997 and with the benefit of the substantial work done by NBAC (NBAC 1997), the Commonwealth Minister for Health and Aged Care requested a report on cloning from the AHEC. The issue of human cloning was not confined to ethical questions; the issue overlapped substantially with existing regulations in three

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States. The report from the AHEC (AHEC 1998) has now been referred on for consideration by the

Commonwealth House of Representatives Standing Committee on Constitutional and Legal Affairs with a view to introducing uniform or complementary regulation. This lengthy and complex process may be seen as a weakness in the AHEC structure and authority with respect to guidelines. On the other hand the AHEC is essentially advisory only when requested to give a report to a Commonwealth Minister. Admittedly, guidelines would suffer the same lack of force in three States with legislation. In recognition of this, the AHEC produced a recommendation that the Parliament consider legislation. An extract from Chapter 4 of the AHEC Report is included in Schedule 3 to illustrate this jurisdiction limitation in relation to legislation and guidelines relevant to cloning in Australia at the relevant period.

(c) Private Institutions. As a matter of law the provisions of the National Health and Medical Research Council Act 1992 (Cth.) do not apply directly to privately funded research (see also comments in Section 7.3 below). So far Australian private institutions have generally complied with NHMRC and other public standards. Some of these institutions informed the AHEC (in the consultation process for the National Statement) that compliance was observed because NHMRC guidelines represented best practice; private institutions were conscious of avoiding possible negligence claims, and all universities, the AVCC, the ARC, and all the Learned Academies had endorsed the National Statement.

     Nevertheless, the AHEC recognized in its Report on Cloning (AHEC 1998) that commercial pressures are increasing in this country, and there is no guarantee that the current regulatory and part self-regulatory system of self-restraint will continue. Certainly, in the case of human cloning, it was considered for ethical and commercial reasons that uniform national legislation was required to bolster existing guidelines.

(d) Second-Stage Consultation. The second-stage consultation process has proved to be a lengthy and costly exercise. The AHEC has profited from the quality and depth of input at the second stage consultation. However, other principal committees of the NHMRC, especially the Health Advisory Committee (HAC), have questioned the value of the process. Many of the reports prepared by the HAC are developed in draft by other major specialist health organizations, and the second-stage consultation is of less value as the specialist input has already been given. For example, the HAC received a report from the Victorian Anti-Cancer Council on Familial Cancers. This report had been prepared over a period of three years and involved the Australian Cancer Network. One stage of consultation was arguably sufficient to inform the public and seek their views on a complex and technical area. In fact, two stages had to be conducted under the terms of the NHMRC Act. In fact very few submissions were received at the second stage.

     The NHMRC decided in 1999 to propose amendments to its Act to allow the possibility of one-stage public consultation in most cases rather than exceptional cases. One-stage consultation was previously permitted in exceptional cases under the NHMRC Act 1992 (Cth.). The amendments to the Act were passed by the Commonwealth Parliament in 1999 (NHMRC Annual Report 1999 at 9). The AHEC is most likely to continue to apply the full two stages of public consultation.

7.2 What Features of These Systems, If Any, Should Be Incorporated in the U.S. System?

At a general level, there is much commonality between the research community in basic ethical principles. There would be little dispute that among the essential values for research is the integrity of the researchers. The Australian National Statement did not invoke any autochthonous principles but referred to the classic U.S. Belmont Report for a statement of the three basic ethical principles for the ethical evaluation of human action (Belmont 1979). These are respect for the person, beneficence, and justice (Beauchamp and Childress 1994; National Statement 1999 at 4). On the other hand, institutions are not so easily transplanted. Committee structure, which operates successfully with refinements, subtleties, and technicalities, may not be suited to

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the conditions of another country. Adaptation and pruning will always be required (Nyali Ltd. v the Attorney-General per Lord Denning at 1617).

     With the cautionary remark about ethical institutional transplants, the following features of the Australian system may be worthy of some consideration by the members of NBAC.

(a) A National Committee/Commission. It may seem inconceivable to the international ethics community that the engine-room of modern biomedical research does not have a permanent standing committee considering ethical issues. The reports of the present NBAC, like the Belmont Report (Belmont 1979), remain profound reference points and rich sources for ethical discussion. NBAC contributed significantly to the global debate with its report on Cloning of Human Beings.

     There is a lacuna if the NBAC or some other appropriate nationally based ethics body is not operating to organize and encourage the development of international collaboration between national bioethics commissions. NBAC has already fulfilled this role with distinction at the inaugural meeting in San Francisco and the second meeting two years later in Tokyo in 1998. Obviously, NBAC or an equivalent body would be concerned principally with the preparation of national guidelines, reports, or advice on specific matters.

     Nevertheless, relations with other national bioethics commissions can be a smaller but highly important roles for a national body. The AHEC has devoted a small but not insignificant percentage of its time dealing with other nations bioethics commissions. In fact, many of these dealings have involved the collection of reports of documents or seeking advice on specific regulations, guidelines, or procedures from a national bioethics commission.

(b) Reporting to Parliament. Under the terms of the National Health and Medical Research Council Act 1992 (Cth.) the NHMRC is required to prepare a plan of work which is presented to the Parliament. In each subsequent year the NHMRC including the AHEC present a report to Parliament. This not only provides an essential and important line of accountability; it requires the NHMRC and AHEC in particular to establish work programs to complete reports in a timely and orderly fashion. As both the Strategic Plans and Annual Reports are presented to Parliament they form public documents which are accessible to the public and interested bodies. The process of reporting to Parliament is recognition of the status of the NHMRC and AHEC.

(c) Public Consultation. The two-stage public consultation has been a complex and weildly process. Nevertheless, it has provided an authentic and transparent opportunity for public comment and for that comment to be integrated into the body of the report and guidelines. As noted earlier in this report the second-stage consultation where the draft guidelines are presented for comment has proved to be successful. At this stage, detailed comments on the specific draft guidelines have invariably led to improvement in the content as well as the wording of the final guidelines. Some 200 submissions were received at each of the stages of consultation for the National Statement on Ethical Conduct in Research Involving Humans. In a small population of 20 million this number may be magnified so much in the more populous United States as to present very considerable challenges to the management of the information presented.

(d) Aspects of the National Statement. NBAC may wish to consider the current principles in the National Statement in relation to epidemiological research, human tissue, and genetic research, which are noted in Section 5.3 of this report. These particular Principles are internally consistent and may offer a modest contribution in these difficult areas.

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7.3 What Are the Strengths and Weaknesses of Models That Are Comprehensive, Those That Encompass Private and Government Sectors, and Nonbiomedical and Biomedical Research?

Fears of High Medical Dominance by Nonbiomedical Researchers. During the period of the Ministerial Review (the IEC Report) and also during the consultation for the National Statement, comments were made and submissions received expressing concerns that some forms of social science research were not appropriate for consideration by HRECs. In essence, many of these concerns centered on the composition of the pre-National Statement HRECs. Until recently, the former Statement on Human Experimentation required a medical graduate as one of the core members. Under the terms of the new National Statement a HREC should be composed of a person with experience in the research considered by the Committee. This has removed some of the concerns. Nevertheless, there has been in Australia for a number of years some tension between the nonbiomedical and biomedical researchers. It is too early to tell whether the comprehensive revisions in the new National Statement will assuage these concerns.

     Creating a Universal Research Culture. The consensus of opinion supported the move to establish a single National Statement as a means to achieving the goal of a universal research culture in this country. Universities in submissions to the public consultation particularly promoted this universal view for the new National Statement. In particular, these submissions stressed the continuing blurring of distinctions between private and publicly funded research and growing of distinctions between medical, health, health-related, and social science research. Many submissions noted that Australia, in line with other countries, was developing research policies to encourage private investment in research. For this and other reasons, it was more appropriate to consider a single research code. Similarly, a researcher has a number of common obligations and ethical duties to the research participant, which are common to research generally.

     That Research Can No Longer Be Assumed to Be of Value to the Community. There is an assumption expressed in the new National Statement that the development of the recognition of human rights and the ethical standards of respect of persons preclude conducting research without the knowledge and voluntary consent of the participant. In this respect, an assumption can no longer be made validly that research is automatically a value to the community. Research, whether privately or publicly funded and whether nonbiomedical or biomedical, must be disclosed to the research participants. The National Statement requires disclosure, information, and voluntary consent. More critically, the Preamble recognizes that the researcher is required to justify the research and that the community expects that research will be conducted in an equitable, professional, and ethical fashion.

     Risk Minimization. The idea of expanded human rights protections in the late 20th century extends far beyond the protection of the physical body of the individual. The doctrines of human rights extend to rights to the protections of law, rights of freedom of speech, rights to nondiscrimination, and equitable treatment as examples. In this sense, the ethical and legal requirements for the respect for persons extends to respecting the privacy of the individual as well as the bodily protection. The National Statement throughout places responsibilities on researchers and HRECs to ensure that risk is minimized and that if risk exists there is a careful balancing of those risks against the potential benefits to be gained within the research project.

     International Research. Australia conducts research outside of its national borders. The National Statement places responsibilities on researchers to conform not only to the standards within the National Statement but to also conform to any local ethical standards in the country in which the research is conducted. With more research being conducted as part of international multicenter trials, the National Statement recognizes that there are national responsibilities to regulate and supervise research conducted outside Australian borders in overseas countries. The existence of a comprehensive National Statement conveys clearly to all researchers be they non-biomedical or biomedical that the high standards of research integrity expected of researchers conducting research in Australia applies equally to overseas research. There is a responsibility on national governments in

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their international relations to maintain appropriates standards. In this respect the recognition that trade and commerce standards probably extend to aspects of international research.

     Private Institutions. There are no compulsory or mandatory powers in the National Health and Medical Research Council Act or in the AHEC to make private institutions comply with the standards of ethical review. The Australian research review system is essentially compulsory in the public arena. Major public institutions including universities and hospitals and research centers have endorsed the National Statement. These bodies recognize that funding from the major public funding organizations (NHMRC and ARC) require approval by a HREC. On the other hand, private companies are essentially complying voluntarily. If they wish to access public funds they are required to comply. In addition, many private companies comply because they are conducting the research in public institutions. Finally, many private companies comply because approval by a registered HREC is considered a prudent step in reducing risks of complaints or possible litigation. As there is an approved national standard for ethical approval from a registered HREC many private companies use the HREC system to ensure that in the event of misadventure a failure to receive ethics clearance would not be seen as a negligent act.

The National Statement applies to de facto private institutions for the following reasons:

As stated, in practice, many private institutions follow the principles of the National Statement. It is not clear at this early stage whether this voluntary compliance will continue. It is equally unclear whether the increasing movement toward greater private funding of research will affect this process of voluntary compliance. For example, will private funders expect ethics clearance as part of the service provided by the research organization? If the HREC refuses clearance will the private funder simply go to the market and seek approval elsewhere? In practice, privately funded clinical research under the national CTN scheme has not followed this path. In practice, the institution conducting the research has required clearance from its own HREC. No market in ethics approval has arisen.

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Schedule 1

Report of the Review of the Role and Functioning of Institutional Ethics Committees AGPS Canberra (1996) Summary of Recommendations

1. To National Health and Medical Research Council

The NHMRC in conjunction with other peak bodies responsible for research and clinical practice (Australian Research Council, Australian Vice-Chancellors Committee, Australian Medical Council) should promulgate guidelines representing a national statement for the ethical conduct of research. Recommendation 5.2.2 The Review Committee endorses the moves by the NHMRC to implement a clinical trials register in Australia. Recommendation 5.6.1

2. To Australian Health Ethics Committee

AHEC should redraft the Statement on Human Experimentation and change its title so that all health investigation involving humans (including nonbiomedical research and innovative practice) is encompassed.

Recommendation 5.3.1

     AHEC should re-draft the Statement on Human Experimentation to include reference to research on distinct cultural groups to the effect that these groups have specific needs that must be addressed. In particular, the guidelines should address the need for an IEC to:

AHEC should re-draft the Statement on Human Experimentation to:

The redrafted Statement should cover all research on humans and not be restricted to NHMRC-funded research. Recommendation 6.1.3 To improve communication and networking between IECs generally and in particular in relation to multi-center trials, AHEC should prepare an IEC directory which includes the names and contact addresses for the Chairs and Secretaries of all Australian IECs. Recommendation 5.5.4 The annual IEC compliance report to AHEC should require details of monitoring arrangements for high risk projects. Recommendation 5.7.3 A checklist for researchers detailing the requirements for the collection and storage of research data and results should be developed by AHEC, and IECs should be made responsible for monitoring compliance with the checklist on privacy guidelines. Recommendation 5.8.2 AHEC should coordinate the preparation of a national standard form of Application for Approval of a research project before an IEC. Recommendation 6.4.1

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     AHEC should supervise the preparation of a Manual of Procedures for IECs following the completion of the re-drafting of the Statement on Human Experimentation and Supplementary Notes, and AHEC should be allocated adequate resources to fund this project. Recommendation 6.5 AHEC should maintain a clearinghouse function, and be responsible for coordinating, collecting, and disseminating information as well as monitoring IECs in line with its statutory requirements. As well, education of IECs researchers and institutions should form a part of the role of AHEC. Recommendation 7.3.1 AHEC should be funded for the appointment of an IEC officer. This officer is required as a matter of priority to coordinate the development of a resource kit (educational package) for ethics committees. Following the development of the kit this officer should remain responsible for ongoing duties relating to the administration and education of IECs. Recommendation 7.3.2 AHEC through its Research Ethics Working Committee should identify appropriate stakeholders in the ethics committee system and consider appropriate means to facilitate their contribution to the system.

Recommendation 8.2

     AHEC should examine the issue of appropriate levels of administration fees for IEC approval. Recommendation 8.5

     AHEC should revise its current compliance information form to include the following information from IECs:

n
  
Membership details
n
  
Number of meetings
n
  
Confirmation of full participation by minimum required members
n
  
Confirmation of due procedures
  n
  
record of decisions has been kept
  n
  
promulgate procedures and ensure they have been followed
  n
  
number of rejections and reasons for rejections/amendments
  n
  
monitoring procedures in place and any problems encountered
  n
  
no member had an apparent or actual conflict of interest
  n
  
no financial profit by members
n
  
Complaint procedures, number of complaints handled
n
  
That an annual report has been produced. Recommendation 9.1.2
3. To Institutional Ethics Committees

Institutional Ethics Committees which do not consider more than 50 research protocols should consider amalgamating their IEC with another IEC or IECs. Recommendation 5.5.1 The Review Committee does not recommend the establishment of regional Institutional Ethics Committees. Recommendation 5.5.2 Institutional Ethics Committees should consider procedures for improving the consideration of multi centre research protocols such as communication between chairs of IECs and the acceptance of another IECs scientific assessment of a project where appropriate. Recommendation 5.5.3 An IEC has the responsibility when approving a research protocol to ensure that appropriate and adequate monitoring arrangements are in place consistent with the level of risk involved in the project to research subjects. Recommendation 5.7.1

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     An IEC must ensure that appropriate and adequate procedures for monitoring are in place prior to the commencement of the project. Recommendation 5.7.2 An IEC should put in place good administrative and record keeping practices. Recommendation 6.1.1 Where an IEC has grounds for concern about a research protocol, the IEC should initiate consultation with the researcher, and where a protocol is rejected by an IEC, reasons for the rejection should be recorded and made available to the researcher. Where a researcher is unhappy with the decision the complaint should be referred to the institution. Recommendation 6.1.2 An IEC should consider the introduction of a system of expedited of review allowing IECs to grant approval to research projects not involving significant risk to the research subjects. Such expedited review have the following features:

     Institutional Ethics Committees should not approve a research project unless they are satisfied that an acceptable Consent Form will be administered to the subjects of the research project. Recommendation 6.4.3 An IEC should have in place appropriate grievance/complaints procedures for participants and these procedures should be included as part of an information sheet provided prior to involvement in the research. This information should include both internal and external contact names and numbers of available participant advisors. Recommendation 6.6 IECs should produce an annual report or contribute to the annual report of their institution. This report should include the compliance information forwarded to AHEC and a listing of all research approved by the committee. Recommendation 9.1.1

4. To Institutions Which Have an Established IEC

An institution should appoint members to the IEC with attention to the following:

(a)
  
The selection of members. The selection of members should be subject to advertising and an open selection process. The selection process may vary between institutions; however the institution is responsible for recording details of the process.
(b)
  
Attributes of members. In addition to their particular knowledge/skills, all members should have good judgment, the ability to function in a committee, and a commitment to the research subject.
(c)
  
Independence of the IEC from the institution. The committee must be capable of acting independently. The ethics committee should be considered a part of, but independent within, the institution, performing an advisory function for the institution. Recommendation 7.1.1

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An institution should maintain its IEC with the following minimum required membership:

n
  
Chairperson
n
  
Person with knowledge of and experience in research involving humans (medical, social, epidemiological, as appropriate)
n
  
Medical practitioner with current/previous involvement with direct patient care
n
  
Minister of religion or equivalent (e.g., aboriginal elder)
n
  
Layman
n
  
Laywoman
n
  
Lawyer and, in the case of a hospital IEC
n
  
Nurse Recommendation 7.1.2
An institution should promulgate the following additional guidelines for the operation of their IEC:
1. Due regard should be paid to age and gender balance of committee representation.
2. Due regard should be paid to the appointment of lay members with appropriate ethnic backgrounds where the research reviewed by the committee is predominantly focused on a particular ethnic group.
3. Members will not fill more than one category.
4. The responsible institution (university, hospital) will formally appoint members of the IEC after receiving appropriate advice. The members should receive a formal notice of appointment which includes a guarantee that the institution will provide legal protection for the member.
5. The duration of membership should be determined by the relevant institution. It is desirable, however, that the members are appointed for an appropriate period to allow the members to acquire and apply new ethical knowledge and decision-making skills. A period of between three and five years is suggested.
6. Where additional members are appointed an appropriate balance between institutional/non-institutional -medical/non-medical must be maintained. Specifically, not less than half the committee should consist of non-institutional, non-medical members.
7. The 7 (8) required members must participate in all decisions (NB it is not necessary for all required members to be present at all meetings, however, all should be involved in the decision-making process).
8. With regard to participant representation it is the view of the Committee that no one person could be representative of all participant groups. All IEC members are appointed to represent participants in research. Consequently, it is the objective of all committee members to use their particular knowledge/skills to anticipate the rights, needs, and expectations of participants. As a result there should be no need for a separate patient advocate or participant representative on the committee. Recommendation 7.1.3

Members of an IEC should be reimbursed for expenses incurred in the conduct of their duty (e.g., parking, additional child care expenses) but should not ordinarily receive a fee for service. In exceptional circumstances a fee for service may be appropriate; however, care should be taken to ensure that this does not result in an apparent or actual conflict of interest for the member(s) concerned. Recommendation 7.2 An institution should make available sufficient (ongoing) funding to enable its IEC members to avail of opportunities leading to improved performance of the IEC (e.g., attendance at seminars/conferences; support for IEC network meetings). Recommendation 7.3.3

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     Each institution is responsible for ensuring that adequate resources are made available to its IEC for the assessment and ongoing monitoring of approved research protocols. Recommendation 8.1 An institution should not establish an IEC unless the institution can assure AHEC that there are adequate means for resourcing the committee. Recommendation 8.3

5. To Researchers

The UK, MRC distinction between innovative therapy/treatment and research should be adopted by AHEC and the Statement on Human Experimentation modified to reflect that the systematic use of an innovative treatment or therapy be considered as research and consequently be subject to assessment by an IEC.

(a)
  
Where a particular experimental treatment/intervention is expected to benefit an individual patient it may be considered as innovative practice rather than research. Where this is the case, the treatment should be governed by doctor/patient ethics considerations.
(b)
  
Where any innovative therapy/intervention undergoes systematic investigation (i.e., is trialed on a number of patients) it should be subject to the same ethical assessment as any research protocol. Recommendation 5.2.1

Researchers should endeavour to simplify all Consent Forms for research subjects and should aim to achieve a form of words which is understandable by a student with Grade 8 schooling. Recommendation 6.4.2

6. Further Recommendations

Funded positions should be created in each State for an area liaison officer whose duties will involve coordination of liaison between AHEC and IECs and fostering communication/networking between IECs. Recommendation 8.4

Schedule 2

AHEC Chairs Report for the NHMRC Annual Report 1999

I am pleased to report that 1999 has been a very productive year for the Australian Health Ethics Committee (AHEC). Some significant documents have been finalised by AHEC namely the National Statement on Ethical Conduct in Research Involving Humans, Guidelines for Genetic Registers and Associated Genetic Material, and Guidelines for Ethical Review of Research Proposals for Human Somatic Cell Gene Therapy. A number of other documents are close to being completed. One of the highlights for AHEC in 1999 was its organisation of the Ethical, Legal and Social Implications program of the prestigious Human Genome Organisation meeting held in Brisbane.

     Objective IV of the NHMRC Strategic Plan 19972000. To continue to provide high quality ethical advice with respect to health research and health care concerns the Australian Health Ethics Committee. The documents produced by AHEC in 1999 will allow Council to continue to provide high quality advice about health from an ethics perspective.

Research Standards/Protection of Research Participants

To support a strong and well-managed research sector, the Australian Health Ethics Committee completed its revision of guidelines relating to the ethical conduct of research. The National Statement on Ethical Conduct in Research Involving Humans was presented to NHMRC in June 1999, following an intensive period of development.

     The National Statement was developed by the Australian Health Ethics Committee and endorsed by the Australian Vice-Chancellors Committee, the Australian Research Council, the Australian Academy of the Humanities, the Australian Academy of Science and the Academy of the Social Sciences in Australia. The

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Academy of Technological Sciences and Engineering also gave the National Statement its support, as did the Ministers for Health and Aged Care, Industry, Science and Resources, and Education and Youth Affairs.

     The significance of this level of support for the National Statement should not be underestimated, as it will ensure a very high standard of protection for participants in all areas of research. All research involving human participants conducted in Australian universities, funded by NHMRC or the Australian Research Council, or involving the learned academies, will now have to be conducted in accordance with these guidelines.

National Workshops

In August 1999, the National Statement was the focus of a series of workshops convened in the capital cities of each State and Territory, and including Alice Springs. These workshops were designed to facilitate the use and understanding of the National Statement by those directly responsible for the maintenance of ethical standards of research in Australia. They were attended collectively by approximately 1,000 representatives of Human Research Ethics Committees from around the country.

Human Genetics

A further major achievement for AHEC has been the finalisation of two guidelines in the field of genetics: Guidelines for Genetic Registers and Associated Genetic Material and Guidelines for Ethical Review of Research Proposals for Human Somatic Cell Gene Therapy and Related Therapies.

     Guidelines for Genetic Registers and Associated Genetic Material covers all aspects of register operation and provides guidelines in such difficult areas as gathering, using and releasing register data and associated genetic material; recruiting people to genetic registers and obtaining their consent; and security and storage of genetic material. The revised document has a wider focus than the original guidelines.

     Human somatic cell gene therapy remains experimental. Guidelines for Ethical Review of Research Proposals for Human Somatic Cell Gene Therapy and Related Therapies provides guidance to Human Research Ethics Committees that are asked to review and approve research proposals involving somatic cell gene therapy, and assists researchers to prepare their submissions for ethical review. The document identifies bodies other than Human Research Ethics Committees from which approval may need to be obtained. An information paper on human somatic cell gene therapy, that provides background information to the Guidelines, is included with the Guidelines.

     A third genetics document is expected to be finalised early in 2000. Ethical Aspects of Human Genetic Testingan information paper addresses issues of equity, access and resource allocation; commercialisation; geneticisation; counselling; and genetic testing of children. Although not formal guidelines, this information paper has been the subject of wide consultationa feature which has strengthened the document.

     Genetics is an ever-changing field of research and the guidance and guidelines developed by AHEC will play a crucial role in protecting individuals whilst encouraging a high standard of research.

Human Research Ethics Committees

Compliance by Human Research Ethics Committees with NHMRC ethics guidelines is reported annually to the Research Committee and NHMRC. This process ensures consistent application of the guidelines as well as providing an auditing mechanism to support quality research.

     In 1999, AHEC continued to provide support to Human Research Ethics Committees by acting as a focal point for queries and concerns as well as preparing guidelines on issues that are likely to be raised during the conduct of research. A major thrust to this end was the 1999 Workshop series which introduced the new National Statement and gave representatives from the research, academic and HREC sectors an opportunity to discuss issues of concern.

     AHEC is developing an operating manual for Human Research Ethics Committees, which is expected to be finalised in 2000. When completed, the manual will form a how to guide addressing common questions and

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providing procedural advice on the application of the National Statement on Ethical Conduct in Research Involving Humans.

Section 95 Privacy Guidelines

Stage two of the public consultation process for the privacy guidelines was conducted in 1999. The Privacy Act 1988 (Commonwealth) authorises the NHMRC to issue guidelines for the protection of privacy in the conduct of medical research. The Federal Privacy Commissioner is also involved in this process. The existing guidelines, Aspects of Privacy in Medical Research, were issued in 1995.

     The revision of these guidelines is a result of a number of changes in the environment in which the guidelines operate, namely the introduction of the NHMRC Act 1992 and the National Statement on Ethical Conduct in Research Involving Humans, and developments in privacy regulation.

     The guidelines provide a framework in which medical research involving personal information obtained from Commonwealth agencies should be conducted, to ensure that such information is protected against unauthorised collection or disclosure.

     The revised Guidelines under Section 95 of the Privacy Act were developed in collaboration with the Federal Privacy Commissioner. Two stages of public consultation were conducted as required by the NHMRC Act, and AHEC endorsed the revised guidelines at its November 1999 meeting. They will be tabled at Council and in the Federal Parliament in early 2000.

Aboriginal and Torres Strait Islander Guidelines

AHEC has reaffirmed its commitment to the protection of Indigenous Australians participating in research by planning a revision of the Interim guidelines for ethical matters in Aboriginal and Torres Strait Islander health research. Recognising that the revision must be a transparent and inclusive process, AHEC is committed to full consultation.

Ethical, Legal and Social Implications Program

AHEC organised the Ethical, Legal and Social Implications (ELSI) program of the Human Genome Organisations 1999 meeting. The meeting was a vehicle by which AHEC was able to showcase its own work, as well as contribute to the national and international debate on ethical issues.

     The ELSI program included a debate, chaired by the Hon. Justice Michael Kirby, that Too much is expected of human genetics research and the human genome project. It was judged a great success by participants.

     Three workshops were chaired by AHEC members and were part of the ELSI program. These were: Commercialisation and benefit-sharing; Religious and cultural perspectives in contemporary genetics; and Genetic susceptibility testing.The financial and intellectual contributions made by the Australian Health Ethics Committee were duly acknowledged. The ELSI program was highly praised by participants and the President of HUGO, and was considered to be one of the best prepared and attended.

Conclusion

This is the third year of the triennium and, in doing my report, I would like to pay tribute to the dedicated and hard-working members of AHEC who have given unstintingly of their time. The Committees success is due to the combined efforts of members.

     It has been my pleasure to chair this Committee for a second triennium. The challenges for AHEC in the future are increasing, especially as a result of the increased use of technology and the improvements in health care testing and information collection.

Professor Donald Chalmers

Chairman

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Schedule 3

Recommendations to the Commonwealth Minister for Health and Aged Care

Recommendation 1

The Commonwealth Government, through the Minister for Health and Aged Care, should reaffirm its support for the UNESCO Declaration on the Human Genome and Human Rights, in particular Article 11, which states that:

Practices which are contrary to human dignity, such as reproductive cloning of human beings, shall not be permitted. States and competent international organisations are invited to cooperate in identifying such practices and in determining, nationally or internationally, appropriate measures to be taken to ensure that the principles set out in this Declaration are respected.

Recommendation 2

Noting that Victoria, South Australia and Western Australia have legislation regulating embryo research and prohibiting the cloning of human beings, the Minister for Health and Aged Care should urge the other States and Territories to introduce legislation to limit research on human embryos according to the principles set out in Sections 6 and 11 of the NHMRC Ethical Guidelines on Assisted Reproductive Technology.

Recommendation 3

Noting that there are statutory authorities established in Victoria, South Australia and Western Australia which consider and may approve human embryo research under strict conditions, the Minister for Health and Aged Care should urge the remaining States and Territories to establish similar statutory authorities with power to regulate research on human embryos according to the principles set out in Sections 6 and 11 of the NHMRC Ethical Guidelines on Assisted Reproductive Technology.

Recommendation 4

The Minister for Health and Aged Care should encourage and promote informed community discussion on the potential therapeutic benefits and possible risks of the development of cloning techniques.

Resolutions of the Australian Health Ethics Committee Pending State and Territory Legislation

Resolution 1

The AHEC proposes that, until legislation is introduced in the remaining States and Territories, the AHEC will collect information from institutional ethics committees (IECs) in these States and Territories on IEC research approvals of projects involving the application of current cloning techniques to human embryos. This information will be obtained in the course of the IEC annual compliance reporting system that is currently in place.

Resolution 2

The AHEC proposes that, until legislation is introduced in the remaining States and Territories, the NHMRC should consider the establishment of an expert advisory committee to assist IECs which seek advice on the scientific aspects of research projects involving the application of current cloning techniques to human embryos.

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Chapter 4 - Australian Legislation and Guidelines Relevant to Cloning in Existence at November 1998

Introduction

4.1

This chapter discusses current State legislation and NHMRC ethical guidelines governing research which deal directly or indirectly with human cloning. The Reproductive Technology Accreditation Committee (RTAC) of the Fertility Society of Australia also issues a Code of Practice for accreditation of all IVF clinics.

The chapter evaluates the adequacy and effectiveness of the current legislation and research guidelines to deal with current and likely future technological processes with human cloning projects.

The definition of cloning in the three States which have relevant legislation is not consistent. The importance of clearly defining this term will be of great importance in ensuring adequate regulation of this expanding area of science.

4.2

4.3

Embryo Experimentation

4.4

4.5

Some of the work in cloning research may involve human embryos. In this case, the current legislation and ethical guidelines on human embryo experimentation will apply directly to such research proposals.

State and Territory governments established Committees of Inquiry which produced a succession of Australian reports on IVF during the 1980s. These reports also dealt with the difficult and controversial issue of embryo experimentation. There continues to be a tension between views that the embryo is, if not a human being, certainly deserving of respect, and that some experimentation ought to be allowed to uncover information relevant for the purposes of: (a) improving IVF techniques; (b) understanding male infertility; (c) understanding chromosomal abnormalities; (d) understanding gene defects; and (e) improving contraception.

Most reports recommended that no experimentation could be carried out either on embryos produced specifically for research or on embryos excess to IVF requirements.

4.6

Victoria

4.7

4.8

Victoria was the first state and the first jurisdiction in the world to introduce legislation to regulate infertility treatment. Legislation was later introduced in both Western Australia and South Australia.

The Victorian Infertility Treatment Act 1995 explicitly prohibits certain research which involves the formation or use of a zygote if the research proposed that the zygote continue to develop to syngamyamongst other prohibited practices is altering the genetic constitution of a gamete intended for use in a fertilisation procedure.

Western Australia

4.9

The Western Australian Human Reproductive Technology Act 1991 contains a list of offences which include conducting unapproved research or diagnostic procedures with an egg in the process of fertilisation or an embryo, and maintaining an embryo outside the body of a woman after fourteen days from the time of mixing of the gametes.

Ministerial Directions under the Human Reproductive Technology Act 1991 (WA) include regulations which would apply if research involving human cloning were to be carried out. Where approval is sought for any research or diagnostic procedure to be carried out involving an embryo, the intention must be that the procedure will be therapeutic and unlikely to have any detrimental effects.

4.10

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South Australia

4.11 The Reproductive Technology Act 1988, together with the Reproductive Technology (Code of Ethical Clinical Practice) Regulations and the Reproductive Technology (Code of Ethical Research Practice) Regulations, prohibit, except in accordance with a licence, experimenting with human reproductive material (meaning a human embryo, human semen or a human ovum).

New South Wales

4.12 In October, 1997, the New South Wales Government issued a discussion paper titled Review of the Human Tissue Act 1983. In the Foreword to this paper, the New South Wales Minister for Health, the Hon. Dr Andrew Refshauge stated that

In response to community concern the Government has decided to introduce a law to ensure that two procedures do not develop in New South Wales. The Government has announced the banning of human cloning and trans-species fertilisation involving human gametes or embryos.

NHMRC Ethical Guidelines on Assisted Reproductive Technology (ART)

4.13 The NHMRC has published specific guidelines dealing with ART which include reference to cloning of human beings. The Ethical Guidelines were tabled in Parliament prior to their release in 1996. These guidelines were accompanied by a recommendation that they form a basis for complementary legislation in the States and Territories which had not yet introduced legislation.

4.14 The NHMRC Act authorises the Council to issue guidelines for the conduct of health research and of other purposes related to health. Although infringement of their provisions is not a legal offence, sanctions for infringement usually involve loss of access to research funds from the fund managed and administered by the Council or publication of the names of infringers in Parliament. The guidelines are regarded as national standards of acceptable practice.

4.15 The NHMRC Ethical Guidelines include a number of guidelines relating to embryo experimentation. A practical requirement of note is that the recognition that any experimentation and research involved in these technologies should be limited in ways which reflect the human nature of the embryo, acknowledging that there is a diversity of views on what constitutes the moral status of a human embryo, particularly in its early stages of development.

4.16 The NHMRC Ethical Guidelines contain restrictions on research relevant and specifically prohibit certain practices.

Comment

4.17 In Australia, substantial limits are placed on research involving embryos. Statutory approval for embryo experimentation is required in three States. The effect of the NHMRC Statement on Human Experimentation and the specific NHMRC Ethical Guidelines which deal with embryo experimentation allow research in this area only in exceptional circumstances. In the other States and Territories an institutional ethics committee (IEC) is required to grant approval for such research in accordance with the NHMRC Ethical Guidelines on Assisted Reproductive Technology.

Assisting in Reproductive Technology Programs

4.18 Cloning techniques of nuclear transfer or embryo splitting could have applications in assisted reproductive programs. One commentator has noted that the nuclear transfer process may have applications in assisted reproductive programs to overcome male infertility problems. An infertile husband could benefit from the asexual nuclear transfer process by contributing his genetic material to the enucleated cell of his

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wife. Applications of cloning techniques could be used to assist in ART by the splitting of embryos, so increasing the number of embryos for later transfer, facilitating fertilisation in women over 40 (by cloning of the mitochondrial or gene set (cytoplasm replacement)), or replacing defective mitochondrial genes that cause disease.

4.19 If any of these procedures were to be undertaken in ART programs, statutory and/or ethical committee clearance would be required. Assisted reproductive technology is regulated by specific legislation in three States. There is a system of self-regulation and accreditation comprising the RTAC and its Code of Practice for units using IVF and related reproductive technologies, with RTAC setting professional and laboratory standards for clinical practice under this system of accreditation.

Status Of Children Legislation

4.20 The status of any child born in an ART program is addressed in State and Territory legislation. This legislation was introduced so that any person donating gametes to another person in an assisted reproductive process was not the parent at law of that child. In essence this legislation established the principle that the recipient social parent, rather than the biological parent, assumed all responsibilities at law for that child. In addition, the legislation also established that the person contributing the gametes did not assume any parenting responsibilities at law under such an arrangement.

4.21

This legislation rests on the donation of gametes rather than the contribution of genetic material. In a scenario where an infertile husband contributes his own genetic material by way of nuclear transfer, the genetic as well as legal relationship is to the husband. On the other hand, were the genetic material to be contributed by a person other than the husband, current legislation may not apply.

Replacing Human Tissue and Organs

4.22 In Chapter 2 there was discussion about early stage research into the development of cell lines from embryonic stem cells. This research may illuminate understanding of the programming and reprogramming of cell lines. Understanding of the process of differentiation and dedifferentiation could be the key to provide an unlimited source of therapeutic cells from which transplantable tissue and organs might result.

Human Tissue Legislation

4.23 All Australian States have enacted legislation regulating the donation and transplantation of human tissue. The definition of tissue is not identical, but in NSW includes an organ, or part, of a human body and a substance extracted from, or from a part of, a human body. In essence, this legislation requires the consent of the parties involved for the donation and for the acceptance of the human tissue in a transplantation procedure.

4.24 Current human tissue legislation may apply to some aspects of proposed cloning techniques. Where a cloning technique uses material from one body for transplantation to another or for research or other purposes, the consent provisions of the human tissue legislation would apply.

Cloning an Individual Human BeingProhibitions in Australia

State Legislation

Victoria

4.25 The Victorian Infertility Treatment Act 1995 deals specifically with cloning and defines it as the formation outside the human body of a human embryo that is genetically identical to another human embryo or person. The Act prohibits a person from carrying out or attempting to carry out cloning. The Victorian Act contains prohibitions on destructive research on embryos. There are several clauses with a very direct bearing upon cloning.

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Western Australia

4.26 In Western Australia, the Human Reproductive Technology Act 1991 establishes a regulatory structure and Code or Practice. The Act itself contains a list of offences including any procedure directed at human cloning or producing a chimaera.

South Australia

4.27 The South Australian Code of Ethical Research Practice also contains a list of prohibitions which include: cloning altering the genetic structure of a cell while that cell forms part of an embryo or an ovum in the process of fertilisation; replacing the nucleus of a cell of an embryo or of an ovum in the process of fertilisation with any other nucleus; and placing reproductive material in the body of an animal.

4.28 The procedure of nuclear transfer which does not involve human semen may not be regulated by the Act or the South Australian Code of Ethical Clinical Practice. The Code of Ethical Clinical Practice does not contain a definition of the term cloning.

NHMRC Ethical Guidelines on Assisted Reproductive Technology

4.29 The NHMRC Ethical Guidelines list a number of practices which are considered to be ethically unacceptable and to be prohibited. These include experimentation with the intent to produce two or more genetically identical individuals, including development of human embryonic stem cell lines with the aim of producing a clone of individuals.

4.30

Supplementary Note 7 to the NHMRC Statement on Human Experimentation clearly states that the introduction of pieces of DNA or RNA into germ (reproductive) cells or fertilised ova is not acceptable, because there is insufficient knowledge about the potential consequences, hazards, and effects on future generations.

4.31 Specific accreditation standards have been formulated by the RTAC and the Fertility Society of Australia has included in its Code of Practice a specific prohibition on nuclear transfer.

Comment

4.32 Embryo splitting and nuclear transfer for the specific purpose of cloning an identical human being is either prohibited or against the intention of the regulatory framework established in Victoria, Western Australia, South Australia and the NHMRC Ethical Guidelines. Production of embryonic stem cell (ES cell) lines is contravened by the Victorian and Western Australian Acts and NHMRC Ethical Guidelines.

Common Law

4.33 There is a general principle that contracts whose formation or performance is contrary to public policy are not enforceable in a court. In determining whether contracts are contrary to public policy, courts can have regard to relevant legislation. Thus, where statutes prohibit cloning, there would be grounds for concluding that a contract to provide tissue for the purpose of cloning an individual human being was contrary to public policy and thus unenforceable. Unenforceability alone does not, of course, provide a ground for prohibition of such contracts and does not mean that the parties by their contract have acted illegally.

Privately Funded Institutions

4.34 A concern at this stage is whether a private, rather than publicly funded, organisation in a State or Territory other than Victoria, Western Australia or South Australia might consider a venture in cloning of human being or cloning of human parts without the approval of an IEC under NHMRC guidelines.

Currently, the NHMRC guidelines are only enforceable against institutions receiving NHMRC funding. The possibility exists that a private institution could decide to undertake such work. Without legislation the NHMRC cannot stop private institutions conducting such work.

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References

International Reports

Presidents Commission Report. (1983) The Study of Ethical Problems in Medicine and Biomedical and Behavioural Research: Deciding to Forego Life Sustaining Treatment Washington.

The Belmont Report. (1979) Ethical Principles and Guidelines for the Protection of Human Subjects of Research The National Commission for the Protection of Human Subjects of Biomedical and Behavioural Research, Department of Health, Education and Welfare, pub. No. (OS) 78-0012 U.S. Government Printing Office Washington.

Council of Europe. (1996) Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine Strasbourg (164).

CPMP/ICH. (1995) Code of Good Pharmaceutical Practice/ International Conference on Harmonisation Note for Guidance on Good Clinical Practice135/95. See also ISO 14155 Clinical Investigation of Medical Devices.

CIOMS. (1993) Council for International Organizations of Medical Sciences (CIOMS) in collaboration with the World Health Organization (WHO), International Ethical Guidelines for Biomedical Research Involving Human Subjects Geneva Switzerland.

Canadian Code. (1997) Code of Ethical Conduct for Research Involving Humans, which is a tri-partite effort by the Medical Research Council, Natural Sciences and Engineering Research Council and the Social Sciences and Humanities Research Council of Canada.

Royal College of Physicians. (1996) Guidelines on the Practice of Ethics Committees in Medical Research Involving Humans London.

Health Research Council of New Zealand. (1997) Ministry of Health Review of the Ethical Review Structure in New Zealand Health Department New Zealand.

Nuffield Council on Bioethics. (1999) The Ethics of Clinical Research in Developing Countries United Kingdom.

National Bioethics Advisory Commission. (1997) Cloning Human Beings: Report and Recommendations of the National Bioethics Advisory Commission Washington.

Legislation

Poisons Act. 1966 New South Wales (see also the Poisons Act in ACT 1933; WA 1964; Tas 1971 and Vic Drugs Poisons and Controlled Substances Act 1991; Qld Health Act 1937; NT Poisons and Dangerous Drugs Act 1983).

Status of Children Act. 1978. (Qld) (and Artificial Conception Act 1984 (NSW); Status of Children Act 1974 (Vic); Family Relationships Act 1975 (SA); Status of Children Act 1974 (Tas); Artificial Conception Act 1985 (WA); Artificial Conception Act 1985 (ACT); Status of Children Act 1978 (NT); Family Law Act 1975 (Cth.).

Freedom of Information Act. 1982 Commonwealth Parliament Australia.

Human Tissue Act. 1983 ss. 69 NSW (see also Transplantation and Anatomy Act 1978 ss. 610 ACT; Human Tissue Transplant Act, ss. 610 NT; Transplantation and Anatomy Act 1979 ss. 812 Qld.; Transplantation and Anatomy Act 1983 s.710, SA; Human Tissue Act 1985 ss. 59 Tas; Human Tissue Act 1982 ss. 512 Vic.; Human Tissue and Transplantation Act 1982 ss. 69 WA).

Reproductive Technology Act. 1988 No 10 Parliament South Australia.

National Health and Medical Research Council Act. 1992 No 225 of 1992 Commonwealth Parliament Australia.

Code of Federal Regulations. (1992) 21 Food and Drugs Part 56.

Therapeutic Goods Act. 1993 Commonwealth Parliament Australia.

Infertility Treatment Act. 1995 Victoria Parliament Australia.

Human Reproductive Technology Act. 1993 Parliament Western Australian.

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Books and Articles

Annas G. (1984) Ethics Committees in Neo-Natal: Substantive Protection of Procedural Diversion? Am J Pub Health 74; 843.

Beauchamp T. and Childress J. (1994) The Principles of Biomedical Ethics (4ed ) Oxford UP.

Beecher H. (1966) Ethics and Clinical Research New Eng J of Med 274:1354.

Beecher H (1968) Ethical Problems Created by the Hopelessly Unconscious Patient New Eng J of Med 278:1425.

Bennett B. (1997) Law and Medicine, LBC.

Brazier M. (1990) Liability of Ethics Committees and their Members Professional Negligence 186.

Breen K. (1997) Ethics Laws and Medical Practice Allen and Unwin Melbourne.

Brody H. (1981) Ethical Decisions in Medicine 2d ed Little, Brown and Co.

Bulletin of Medical Ethics. (1999a) Medical Research has its Downsides Bulletin of Medical Ethics, November 152: 7 (citing reports in The Times, 2 October 1999; The Guardian 8 November 1999; and 1999 Brit Med J 319274).

Bulletin of Medical Ethics. (1999b) Helsinki Declaration Revising Continues Bulletin of Medical Ethics 146:3.

Capron M.A. (1985) Legal Perspectives on Institutional Ethics Committees Journal of College and University Law 11:7.

Chalmers D. and Pettit P. (1998) Towards a Consensual Culture in the Ethical Review of Research Med J of Aust 168:79.

Clarke C. (1998) Should There Be an Accredited Ethics Committee System of Centralised Review of Multi-Centre Clinical Research Med J of Aust 169:283 (and Henman M. et al. Med J of Aust 169:2834; E. OBrien E. (1998) et al. Med J of Aust 169: 2845; S. Gandevia S. et al. Med J of Aust 169:285.

Cohen M.(1998) Should There Be an Accredited Ethics Committee System for Centralised Review of Multi-Centre Clinical Research? Med J. of Aust 168:528.

Darvall L. (1993) Autonomy and Protectionism: Striking a Balance in Human Subject Research Policy and Regulation Law in Context 11:82.

Editorial. (1976) 7 Med J of Aust 7:17980.

Engelhardt H. T. (1986) The Foundations of Bioethics Oxford UP.

Fletcher J. (1973) Realities of Patient Consent to Medical Research Hastings Center Studies 1:1.

Freckelton I. and Petersen K. (1999) Controversies in Health Law Federation Press Sydney.

Freedman B. and Glass K. (1990) Weiss v Solomon: A Case Study in Institutional Responsibility for Clinical Research Law, Medicine and Health Care 18:395.

Furrow B. et al. (1995) Health Law West Law Publishing.

Giesen D. (1995) Civil Liability of Physicians for New Methods of Treatment and Experimentation: A Comparative Examination

Med LR 3:22.

Gillespie R. (1988) Research and Human Subjects: an Historical Overview Conference Proceedings: Can Ethics Be Done by Committee? Monash University Centre for Bioethics Australia.

Healy D. (1999) Clinical Trials and Legal Jeopardy Bulletin of Medical Ethics 153:1318.

Jonas H. (1969) Philosophical Reflections on Experimenting with Human Subjects (1969) Daedalus 98.

Kelly F. and Boyages S. (1999) Pilot Programme to Reform the Ethics Committee System in NSW Med J of Aust 171:52.

Kirby M. (1983) IVF - The Scope and Limitation of Law Conference on Bio-ethics and the Law of Human Conception IVF 2930 September London UK.

The Lancet. (1999) 353:4003 (Cited in Bulletin of Medical Ethics 148:5).

Laufer S. (1990) The Regulation of Medical/Scientific Research Practices Involving Experimentation on Human Beings Law in Context 8:78.

Levine R. (1986) Ethics and Regulation of Clinical Research Urban and Schwarzenburg Baltimore.

Mant D. (1999) Can Randomised Trials Inform Clinical Decisions About Individual Patients? The Lancet 353:743746.

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McNeill P. (1993) The Ethics and Politics of Human Experimentation Cambridge UP.

Magnusson R. (2000) The Use of Human Tissue in Medical Research: Legal Issues for Human Research Ethics Committees J of Law and Medicine 7:390.

Merritt A. (1987) The Tort Liability of Hospital Ethics Committees Southern Cal LR 60:1239.

NCBHR. (1995) Protecting and Promoting the Human Research Subject: A Review of the Function of Research Ethics Boards in Canadian Faculties of Medicine NCBHR Communiqué 6:133.

Nelson D. and Weiss R. (1999)Hasty Decisions in the Race to a Cure? Washington Post Sunday Nov 21 p A1.

Neuberger J. (1992) Ethics and Health Care: The Role of Research Ethics in the UK Kings Fund Institute Research Report 13 London.

Pellegrino E. and Thomasa D. (1996) Christian Virtues in Medical Practice Georgetown UP.

Rawbone R. (2000) Observation from Six Years Experience of a Health and Safety Research Ethics Committee Bulletin of Medical Ethics 155:13.

Scott R. (1984) Experimenting with Life: Must Law-Makers Experiment Too? 5th International Conference on Forensic Science, Sydney Australia.

Skene L. (1998) Law and Medical Practice Butterworths Melbourne.

Parliament Debate

Commonwealth of Australia Parliamentary Debates: Senate Volume S154 36th Parliament, 1st Session 5th period 1991.

National Health and Medical Research Council and AHEC Reports

NHMRC. (1984) Supplementary Note on Embryo Flushing AGPS Canberra Australia.

NHMRC. (1985) Report on Workshops on the Constitution and Functions of Institutional Ethics Committees in Australia 198485 NHMRC. AGPS Canberra Australia.

Statement on Human Experimentation. (1992) NHMRC Canberra Australia.

AHEC. (1992) CTN Guidelines for Institutional Ethics Committees Canberra Australia (see also Clinical Trials of Drugs in Australia DEB 1 The Clinical Trial Notification (CTN) Scheme; Guidelines for Good Clinical Research Practice Therapeutic Goods Administration; Australian Guidelines: Clinical Trials Exemption (CTX) Scheme for Drugs DBE 5).

AHEC. (1993a) Report of the 1993 Workshops for Institutional Ethics Committees: Consultation with Researchers and Forum on HRECs

NHMRC Canberra Australia.

NHMRC. (1993b) Report of the 1993 Survey of Institutional Ethic Committees NHMRC AGPS Canberra Australia.

NHMRC. (1994) Annual Report 1993 AGPS Canberra.

Bienenstock J. (1993) Report of an External Review of the National Health and Medical Research Council AGPS Canberra Australia.

NHMRC. (1994) Report on Compensation, Insurance and Indemnity Arrangements for Institutional Ethics Committees, AGPS Canberra Australia.

AHEC. (1996) Ethical Guidelines on Assisted Reproductive Technology AGPS Canberra Australia.

NHMRC. (1997) Annual Report 1996 AGPS Canberra.

NHMRC. (1998) Annual Report 1997 AGPS Canberra.

AHEC. (1998) Report on the Scientific, Ethical and Legal Considerations Relevant to Human Cloning Commonwealth Minister for Health and Aged Care NHMRC Canberra Australia.

NHMRC. (1999) Annual Report 1998 AGPS Canberra.

NHMRC. (2000) Annual Report 1999 AGPS Canberra.

NHMRC. (2000) Guidelines under Section 95 of the Privacy Act 1998 Canberra Australia.

National Statement on Ethical Conduct in Research Involving Humans. (1999) Commonwealth of Australia AGPS Canberra (www/nhmrc.gov.au/ethics/statemen.htm).

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Australian Reports

Allars M. (1994) Report of the Inquiry into the Use of Pituitary Derived Hormones in Australia and Creutzfeldt-Jakob Disease (CJD) Commonwealth of Australia AGPS Canberra Australia.

Baume P. (1991) A Question of Balance: Report on the Future of Drug Evaluation in Australia Report to the Commonwealth Minister for Aged, Family and Health Services AGPS Canberra Australia.

Chalmers D. (1985) Interim and Final Report of the Committee to Investigate Artificial Conception and Related Matters Government Printer Tasmania Australia.

Chalmers D. (1996) Report of the Review of the Role and Functioning of Institutional Ethics Committees Report to the Commonwealth Minister for Health and Family Services AGPS Canberra Australia.

Cornwall J. (1984) Report of the Working Party on IVF and AID (and 1987 Select Committee of the SA Legislative Council, Report on Artificial Insemination by Donor, In Vitro Fertilisation and Embryo Transfer Procedures and Related Matters in South Australia)

Government Printer South Australia Australia.

Day R. (1993) Review of the Clinical Trials Notification (CTN) Scheme: Report to the National Manager of the Therapeutic Goods Administration, Therapeutic Goods Administration Canberra Australia.

Demack J. (1984) Report of the Special Committee Appointed by the Queensland Government to Enquire into the Laws Relating to AID, IVF and Related Matters Government Printer Queensland Australia.

Family Law Council of Australia. (1985) Creating Children: A Uniform Approach to the Law and Practice of Reproductive Technology in Australia Family Law Council AGPS Canberra Australia.

Finn P. (1990) Health Ethics: The NHMRC and the NBCC Report to the Federal Minister for Health Canberra 29 October 1990.

Michael C. (1984) Interim Report of the IVF Ethics Committee of W.A. and a final report in 1986; Report of the Committee Appointed by the Western Australian Government to Enquire into the Social, Legal and Ethical Issues Relating to In Vitro Fertilisation and Supervision

Government Printer Western Australia Australia.

Privacy Commissioner. (1996) The Privacy Implications of Genetic Testing AGPS Canberra Australia.

Senate Select Committee. (1986) Human Embryo Experimentation in Australia Commonwealth Parliament Australia.

TGA. (1990) Australian Code of Good Manufacturing Practice for Medicinal Products AGPS Canberra.

Waller L. (19821984) Interim Report of the Committee to Consider the Social Ethical and Legal Issues Arising from IVF; Report on Donor Gametes in IVF; Report on Disposition on Embryos Produced by IVF Government Printer Victoria Australia.

Wills P. (1999) Virtuous Cycle Report to Commonwealth Government AGPS Canberra July 1999 which reviewed the structure and financing of medical research in Australia.

Court Decisions

Bennetts v Board of Fire Commissioners of New South Wales (1967) 87 WN (NSW) 307.

Bouvia v Glenchur (1986) No C 583828 Cal. S Ct. Los Angeles County 7 10.

Canterbury v Spence (1992) 464 F2d 772.

Davis v Rodman (1921) 146 Ark. 385, 227 SW 612.

Halushka v University of Saskatchewan (1965) 53 DLR(2d) 436.

In Re Quinlan (1976) 70 NJ 10; 355 A 2d 647 Certificate denied, 429 US 922.

Nyali Ltd. v the Attorney-General (1956) 1 QB at 1617.

R v Ethical Committee of St Marys Hospital ex-parte Harriott (1988) 1 FLR 512.

Reibl v Hughes (1980) 114 DLR (3d)1.

Rogers v Whitaker (1992) 67 ALJR 47; (1992) 175 CLR 479.

Tobacco Institute of Australia Ltd v National Health and Medical Research Council and Others (1996) 142 ALR 1.

Weiss v Solomon (1989) 48 CCLT 280.

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LOCATION OF THE

OFFICE FOR PROTECTION FROM RESEARCH RISKS WITHIN THE NATIONAL INSTITUTES OF HEALTH: PROBLEMS OF STATUS AND INDEPENDENT AUTHORITY

Commissioned Paper John C. Fletcher University of Virginia

B-1



I. Introduction

Task and Methods. The task is to examine the location of the Office for Protection from Research Risks (OPRR) within the National Institutes of Health (NIH) and its effects on the mission of the Office. Recommendations will accompany the findings.

     The issue of location is conceptually related to OPRRs mandate, the institutional histories of OPRR and the NIH with regard to human subjects research (HSR), and the general performance of the U.S. system for protection of human subjects of research (HSoR).1 These themes will be addressed in the report, although the discussion will mainly address the location issue.

     In addition to literature on the strengths and weaknesses of other federal regulatory agencies, the author reviewed the history and present mandate of two federal bodies with similar missions and past problems of conflicts of institutional interests: 1) the Office of Government Ethics (OGE) and 2) the Nuclear Regulatory Commission (NRC).

Interviews

n
  
September 4, 1997 (telephone)
Charles R. McCarthy, former Director, OPRR
n
  
September 11, 1997 (on-site, 10:00 A.M. 3:00 P.M.) Gary B. Ellis, Director, OPRR
J. Thomas Puglisi, Human Subject Protections, OPRR
n
  
September 25, 1997 (telephone)
Alexander M. Capron, Professor of Law, University of Southern California
n
  
September 30, 1997 (telephone)
James P. OSullivan, Associate General Counsel, U.S. Office of Government Ethics
n
  
September 30, 1997 (telephone)
J. Samuel Walker, Historian, Nuclear Regulatory Commission
n
  
October 3, 1997 (telephone)
Richard A. Merrill, Professor of Law, University of Virginia
n
  
October 5, 1997 (telephone)
Jay Katz, Professor Emeritus, Yale University
n
  
October 17, 1997 (telephone)
Robyn Y. Nishimi, Ph.D., Director, Presidential Advisory Committee on Gulf War VeteransIllnesses
n
  
October 20, 1997 (telephone)
Mary Ann Dufresne, Staff Aide to Sen. Glenn
n
  
October 22, 1997 (on-site, 10:00 A.M. 12:00 P.M.) Gary B. Ellis, Director, OPRR
F. William Dommel, Director of Education, OPRR
n
  
October 27, 1997 (telephone)
Richard Riseberg, Chief Counsel, Public Health Service
n
  
November 10, 1997 (telephone)
James H. Jones, Professor of History, University of Houston

B-3


Executive Summary and Major Findings

A. On the Location of OPRR in Government

1) OPRRs location within the NIH is a structural conflict of missions and incompatibility of functions. This structural conflict gives rise to several troubling and persistent problemsincluding conflicts of interestfor the professional staff of OPRR and the NIH officials who administer OPRR.

The reports arguments are based on these points and findings:

n
  
OPRRs mission is to uphold the primacy of the rights and welfare of HSoR. This mission is enveloped within the NIHs scientific mission and its powerful interests in funding and conducting research. This conflict of missions weakens OPRRs authority and stature and engenders conflicts of interest.
n
  
The most compelling evidence of conflict of interest is that OPRR is far more effective and authoritative in regulating grantee institutions than Department of Health and Human Service (DHHS) agencies.
n
  
The NIH is in the implausible position of regulating itself. Internally, the NIH leadership suffers from institutional blindness to the structural problem and the issue of conflict of interest. Externally, the NIH suffers a credibility problem. Others, such as the General Accounting Office (GAO), the Human Research Ethics Group, and this observer, clearly see a conflict of missions that lead to conflicts of interest. The NIH leadership neither acknowledges nor moves to remedy the situation. In that the NIH is an agency of the DHHS and part of the Executive Branch of government, the White House and DHHS have the ultimate responsibility for the problems that weaken OPRR and its mission in HSR.
n
  
An inappropriate location for OPRR imposes burdens that weaken the entire system, e.g., reduced status and lack of respect, political pressure from the NIH requiring problematic compromises, and inordinate time and effort to correct noncompliance and other significant problems.
n
  
OPRRs present location is entirely inappropriate for any future system of universal protection of human subjects as envisioned by Senator Glenn and other sponsors of federal legislation, the Advisory Committee on Human Radiation Experiments (ACHRE), the Human Research Ethics Group, or the National Bioethics Advisory Commission (NBAC) itself.2
n
  
The history of two other national agencies offers relevant analogies and remedies: the NRC and the OGE.
B. The U.S. System of Protection of HSoR Has Significant but Remediable Problems

1) Federal legal protections exist only for HSR that is a) conducted or supported by any of 17 Federal Departments or Agencies that adhere to the Common Rule or b) regulated by the Food and Drug Administration (FDA). A substantial volume of HSR occurs beyond the perimeter of those protections;

2) Sanctions are inadequate for violations of federal regulations to protect HSoR;

3) No permanent national forum exists for informed debate, continuing interpretation, and application of ethical principles and rules for HSR, consideration of problematic cases, or formulation of policies to meet new needs;

4) OPRR, the federal office for oversight of human subject Assurances representing approximately 5,000 domestic and foreign institutions and for consultation with 17 Federal Departments or Agencies that conduct or sponsor HSR, is now severely undersized and compromised in effectiveness, given the magnitude of its oversight of HSR activities within its current authority. If there were universal protection of HsoR, the current OPRR would be totally inadequate to the task.

B-4


Recommended Remedies:

For A.1, B.3, and 4: Elevated status, independent location, and adequate funding for a successor to OPRR: the National Office of Human Subjects Research (NOHSR) along with a National Advisory Committee for Human Subjects Research (NACHSR).

     For B.1 and 2: Federal legislation that confers the protections of informed consent and Institutional Review Board (IRB) review for all HSoR, with appropriate sanctions for violators.

II. Moral and Political Reflection on the U.S. System to Protect

Human Subjects

A.
  
Moral Reflections
1.
  
How Vigorously Should Society Protect HSoR?

Answers to this question depend on ethical perspectives on the status of research. Given societys major goals and interests, is there a defensible moral imperative to conduct biomedical research and human experimentation? Is there a moral obligationarising from the needs of society and the social contract with its membersfor biomedical scientists to conduct research and for persons who are sick or well to participate in it? Does society have rights in human experimentation that it should claim to procure knowledge to save lives and reduce the incidence of disease? McDermott argued for a strong version of such a position in the 1960s.3 If his argument prevails, then the reasons for society to protect HSoR are weaker than reasons that flow from a different moral argument.

     Jonas saw no moral duty to conduct research and especially HSR. Contrary to McDermott and other scientists who argued for the moral priority of societys need for knowledge to struggle against death and sickness, Jonas defended the dignity of the individual over the advance of knowledge. He wrote that social progress through medical progress is an optional goal, not an unconditional commitment.4 His words capture the moral sense that, in my view, deserves the stronger loyalty in this debate. Jonas wrote: Let us also remember that a slower progress in the conquest of disease would not threaten society, grievous as it is to those who have to deplore that their particular disease be not yet conquered, but that society would indeed be threatened by the erosion of those moral values whose loss, possibly caused by too ruthless a pursuit of scientific progress, would make its most dazzling triumphs not worth having.5 Higher loyalty to the dignity and welfare of HSoR ought (almost always) to prevail over loyalty to the cause of science and the needs of society for knowledge, relief of suffering, and cure and prevention of disease. The origin of this loyalty is respect for persons and their capacity for expressions of altruism and sacrificethe ideal (although rarely the actual) moral source of participation in research. As Jonas pointed out, society has no special claim or command over the altruism and sacrificial gifts of subjects of research, especially those who are sick. Conscription for research is unethical in any society. The yes to participate in research is one that only the individual or a legally authorized representative has the authentic moral capacity to give, despite all of the other real influences on subjects motivation, including financial inducements and physicians recommendations.

     The caveat of almost always above recognizes those periods in social life when morally justified wars and national emergencies can lead to troubling degrees of relaxation of normal moral boundaries for the sake of survival. Even on these extraordinary occasions, however, there should be no involuntary experimentation on members of the armed services, prisoners of war, or otherwise incarcerated research subjects. At such times, some degree of secrecy about specific research projects may be required to protect the national interest. Even in this special context, all HSR in secret or protected projects should still have the twin protections of prior review and informed consent.

B-5


     U.S. law and regulations on HSR fall far short of the moral ideal, in that legal protections are extended only to subjects who participate in certain federally funded or regulated projects. Universalizing the scope of legal protection, as has now been done by the 21 member countries of the Council of Europe,6 is now a moral imperative for the U.S. Congress. A large and unknown number of human subjects are at risk in research projects funded through the private sector. The nations belonging to the Council of Europe have implemented the first truly international legal protection of all human subjects.

     Higher loyalty to the welfare of HSoR does not mean that no loyalty at all is owed to sciences quest for truth or to the needs of society to reduce and prevent disease. There is an important right of scientists to seek knowledge that can be infringed rarely and with a compelling public interest as the test. This right is constitutionally grounded in the right of free speech.7 There is at least a nonbinding civic obligation (but not a stringent moral duty) for members of modern and democratic societies to support scientific investigation and to participate if able in research conducted within prevailing ethical and legal norms. This civic duty arises from the value of science to democracy and from a shared commitment to resolve significant social and scientific disputes by evidence rather than ideology.

     Rather than a sharp either-or division of loyalty that places all moral weight on protection of HSoR and none on any other related cause or claim, it is practical to recognize a hierarchy of loyalties in research activities. Loyalties are owed, in this order, to 1) protection of HSoR, 2) protection of scientific and academic freedom, 3) commitment to meeting societys needs for biomedical knowledge, and 4) concern for the welfare of particular research institutions and investigators. Such a hierarchy of loyalties underlies the authors views and recommendations of this report. The societal obligation to protect HSoR is higher than the other three, but it is also morally justifiable to be loyal to the other claimants when doing so does not override and unjustifiably infringe loyalty to protecting HSoR.

     The guiding moral premise of this report is that Congress originally created the mandate that was delegated to OPRR out of fidelity to higher loyalty to the protection of HSoR. However belated this recognition by Congress in 1974, it is the moral core of OPRRs mission. Further reasons to protect human subjects arise from three realities of HSR: 1) HSR is mainly for the benefit of society and the medical sciences, 2) HSoR are vulnerablethey frequently volunteer with motives driven by a therapeutic misconception8 that research will benefit them as well as trust in their physicians who refer or recruit them, and 3) the motivation of physicians who are also investigators studying their own patients is extremely complex and vulnerable to internal and external influences that can run counter to the welfare of the subjectse.g., competition for scarce funding, career advancement, and financial inducements to enter patients into studies.9

B.
  
Political Reflections
1.
  
The Mandate of OPRR

Congress amended the Public Health Service Act (July 12, 1974) with Public Law 93-438, the National Research Act. This law directed the Secretary, DHEW, to 1) promulgate regulations regarding IRB review and institutional Assurances, 2) establish a program of ethical guidance, and 3) establish a process for responding to violations of the rights of HSoR. The second item was handled by OPRRs predecessor, the NIH Institutional Relations Branch, and was formally delegated by the Secretary to OPRR. OPRR is thus the DHHS-wide authoritative voice on clarification and guidance on ethical issues. The first and third items have always been done exclusively by OPRR.

2. The U.S. System of Protection of HSoR

Turning attention to the U.S. system of protection of HSoR and to OPRRs place within it, a very mixed picture of strengths and weaknesses emerges. Justified pride is due in that the United States was the first nation to extend

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legal protection for HSoR in federally funded research. A vast and very diverse network of IRBs, estimated at between 3,000 and 5,000, has evolved. These IRBs serve as the nations primary resource for the protection of HSoR by examining the ethical aspects of a project before it begins. A morally valid process of informed consent to the particular research project is the second major resource to protect HSoR.

     IRBs and their authority have gradually been accepted by clinical investigators with rare exceptions. However, the nations IRBs have well-known problems, such as poor relationships to their local communities, inadequate education and training for members, inadequate scientific expertise, misallocation of effort to assure scrutiny of studies carrying greatest risk, poor quality control of reviewer performance, poor performance in continuing review, and little first-hand exposure to the context of clinical investigation and specific studies.10 These problems need attention within cooperative efforts between the local and federal partners in the enterprise. In my view, significant improvements will not occur without a national strategy, adequate funding incentives, and a strengthened successor to the OPRR, which is charged by Congress with the role of education and IRB welfare. Small staff and other pressures greatly limit OPRRs role and effectiveness in IRB education and oversight as compared to its role with Assurances and compliance.

     Nishimis testimony11 captures the history of the U.S. system of protection of HSoR. She explains that the approach that the federal government employs to protect HSoR is intentionally decentralized and diffused. The structure of the current system has changed very little from the approach set out by the 1966 Public Health Service (PHS) guidelines. Local review has been the centerpiece of protection, based on the belief that a local group of relatively disinterested individuals is most desirable because they are in the best position to know the prevailing values and ethics of the community and proposed subject population. At the NIH from 19661969, the author witnessed the earliest stage of the PHS regulation of HSR. The NIH leadership believed that local review coupled with a very modest NIH-based oversight mechanism would suffice. In 1982, the author interviewed Dr. James Shannon, former Director, NIH, and other NIH and PHS officials about the main features of the Surgeon Generals policy and their memories of the need for it.12 Dr. Shannon stated, None of us wanted a bureau of ethics in Bethesda. Local prior group review was the linchpin of the policy.Despite the wish of Dr. Shannon and others, the OPRR, if not a bureau of ethics, is the sole official voice and continuing presence within government with a priority of protecting HSoR. The OPRR is inadequate, for several reasons, to do this task within its current mandate. Problems arising from location contribute to this condition. The NIH exercises a dual role to promote and regulate HSR. Although the NIHs problem is far less dangerous, there is a historical analogy in the Atomic Energy Commissions (AECs) failure from 19511973 to hold together both the promotion of nuclear energy and regulation of its uses. DHHS and Congress should face and resolve a persistent conflict of missions and interests between the NIH and OPRR.

III. Location of OPRR: Impact on its Mission

A. Historical Background on HSR and the NIH

The argument in this report is that structural conflicts of mission between OPRR and the NIH engender conflicts of interest for OPRRs staff and NIH officials. How does this report use the term conflicts of interest? In his discussion of this topic in the context of health care, Erde first describes an artificially narrow account of a conflict of interest, i.e., conflicts of interest occur when and only [when] a [physician] strays or is tempted to stray from...role mandated duties for the sake of...economic benefit.13 Erde goes on to discuss a much broader range of causes (e.g., motives, situations, and structures) that may or may not influence conflicts of interests. This report seeks an understanding of conflicts of interest informed by Erdes broader discussion, e.g., in this situationfor regulators (at OPRR) and for funders and sponsors of HSR (at the NIH)conflicts of interests are either motives that [regulators or funders/sponsors] have and/or situations in which we could reasonably

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think...[their] responsibilities to observe, judge, and act according to the moral requirements of their role are or will be compromised to an unacceptable degree.14 The next several parts of the report provide historical background and data to support the argument.

1. Historical Background

A brief historical background should preface a discussion of OPRRs location. The history of NIHs role in the protection of HSoR can be evaluated from different standpoints. Viewed from within the NIH, there is much in which to take pride. From 1953, a form of prior group review at the Clinical Center, NIH, was an early predecessor of IRBs. The NIH leadership responded in the early to mid-1960s to social and media criticism of a lack of protection of HSoR and to the legal risks to clinical researchers.15 As described below, the NIHs intramural leaders continued to improve a very effective research review system from 1966 to the present. The NIH also helped to staff and support the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (197478), whose work developed consensus and a foundation for a systematic ethical perspective and body of ethical guidance on HSR. The work of the Commission, especially on research with children, had immediate effects within the intramural program. The NIH also funded and housed the OPRR to the present time.

     From outside the NIH and the PHS, critical questions can be raised about the HSR record of the nations major funder and sponsor of biomedical research. One finds at different periods examples of institutional blindness to HSR issues,16 to congruence of public accountability between the NIHs intramural and extramural programs, and to the OPRRs legitimate authority. The first two examples are preludes to a condition of institutional blindness to the conflict of interests issue embedded in OPRRs location within the NIH.

a. Early History of NIH-PHS and HSR: How Could the Tuskegee Study Have Endured So Long?

The founders of the NIHs intramural program, which began when the Clinical Center opened in 1953, were very conscious of their moral responsibilities in HSR. Accordingly, they created and continued to improve forms of prior group review suited to the requirements of the intramural program. These efforts from 19531977 are described below. In this period, there was a greater degree of protection for normal volunteers and patients in research carrying higher risk than for patients in research with lower risks or who were being followed and studied in experimental conditions. The ethos of these years was also grounded in deep commitments to scientific freedom and flexibility for researchers to follow the implications of their discoveries with particular patients. It is important to remember that, in this period, there was no systematic body of ethical principles and guidance for HSR. As in the wider research community,17 the norms of the NIH culture permitted wide latitude with regard to informed consent and did not require prior group review of each research project with patients or of a single experiment involving one or a few patients.

     In the 1950s and 1960s, the NIH was a relatively new agency where streams from two research cultures and one research bureaucracy met, but with apparently little creative or critical interaction. The first was an older pre-WWII research culture marked by a few general moral norms and an overriding degree of ethical relativism. It was this culture that created and supported the PHS-Centers for Disease Control (CDC) Tuskegee syphilis study from 19321972. The second was a post-WWII and post-Nuremberg research culture. It was marked by high commitment to the best science, to informed consent (tinctured heavily with flexibility and the therapeutic privilege), and to new forms of prior peer review of proposed research. The founders of the intramural program were largely members of this second culture. A third stream, a research bureaucracy with written ethical requirements on HSR, grew up around the NIHs extramural grants and contracts program in the 1960s. The 1966 and 1971 PHS-NIH policies requiring local IRBs and prior group review were required of grantees and contractors in this program.

     A question deserving of more historical research arises as to whether the principals in these three arenas seriously discussed ethical issues among themselves. If they did so, it was without much perspective on the

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implications that strong commitments to post-Nuremberg research ethics within the intramural program had for the extramural program or for earlier research (e.g., Tuskegee syphilis study) being conducted by PHS and CDC physicians. If one hypothesizes great social distance between these three arenas, and such could be demonstrated, it would help greatly to explain subsequent events.

     How else could the most dramatic example of institutional blindness to HSR issues in the history of the PHS-CDC be explained? Jones18 describes the mid-1960s confrontation of PHS and CDC officials about the Tuskegee study by Peter Buxton, a PHS venereal disease interviewer and investigator. These officials19 could find no ethical reasons to criticize or halt a longstanding (19321972) Tuskegee study of untreated syphilis, even after the discovery of penicillin. The depth of blindness and resistance to Buxtons moral claims can also be measured by two factors. First, awareness of the civil rights movement should have focused PHSs concern on the fact that all the subjects were black and totally uninformed.20 Second, it is also striking that the officialsresistance to Buxtons criticisms occurred at exactly the same time that the PHS-NIH was requiring prior group review of HSR in response to other famous cases, scandals, and Dr. Henry Beechers historic article.21 In fact, the PHS-NIH requirement of local prior review grew directly out of a decade of experience in the NIH intramural program. Did the right hand (PHS-CDC) know what the left hand (NIH-extramural/intramural) was doing? More historical research is needed to answer this question and to explain the reasons for such profound silence about the implications of post-Nuremberg ethics, as practiced at the intramural NIH, for evaluation of the Tuskegee study.

b. Applying Federal HSR Regulations to NIH’s Intramural Program

A second but less dramatic example of institutional blindness is a ten-year (19711981) period in which federal regulations incongruently applied to extramural grantees and contractors but not to the intramural research program. In government generally prior to this period, there was institutional blindness and a slow learning process as to the need for reforms in HSR ethics.22 The learning process within the PHS and the NIH was provoked by crises that sparked reforms and resulted in more NIH commitment to bioethics.

     In 1966, PHS promulgated a Surgeon Generals policy requiring local prior group review of all grant applications to PHS to involve human subjects.23 The 1966 policy was revised in 1971 (the Yellow Book) to require IRBs to have outside members who were nonscientists. However, this policy did not apply to the NIHs intramural research at the Clinical Center. The policy was translated into federal regulations in 1974. Notably, the 1974 federal regulations requiring IRBs24 stated:

46.1 Applicability

(a)
  
The regulations in this part are applicable to all Department of Health, Education, and Welfare grants and contracts supporting research, development, and related activities in which HSoR are involved.

The regulations did not apply to NIHs intramural program until the 1981 revised regulations25 were published, but with a loophole to provide flexibility:

46.101 To what do these regulations apply?

(a)
  
Except as provided in (b) of this section (i.e., categories of exempted research), this subpart applies to all HSR conducted by the Department of Health and Human Services and funded in whole or in part by a Department grant, contract, cooperative agreement or fellowship.

(1)This includes research conducted by Department employees, except each Principal Operating

Component head may adopt such nonsubstantive, procedural modifications as may be appropriate from an administrative standpoint.

     In 1991, Subpart A of the regulations was extended by the Common Rule to apply to all HSR conducted, supported, or otherwise subject to regulation by any Federal Department or Agency.26

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     In 1993, Congress finally closed the gap by specifically requiring all research conducted by the NIH be subject to IRB review:27

Section 492A (a) Review as Precondition to Research

A) [requirement of prior IRB review of all applications to the Secretary for financial assistance to conduct research]

B) In the case of research that is subject to review under procedures established by the Secretary for the protection of human subjects in clinical research conducted by the National Institutes of Health, the Secretary may not authorize the conduct of the research, unless the research has, pursuant to such procedures, been recommended for approval.

     What explains this long period of incongruence and differences of public accountability to federal regulation? Three factors influenced this delay. The first factor was that the source of leadership for reform of research ethics in the mid-1960s as well as the substance of that reform arose from within the NIH and was promulgated outward for grantees and contractors. NIH officials, especially Dr. James Shannon, led the response to widespread evidence of abuses of HSoR and fashioned the requirement of local prior group review as U.S. public policy.28 Dr. Shannon and the Surgeon General, Dr. Luther Terry, presented the arguments for this policy to the National Advisory Health Council in September 1965.29 It did not occur to them to require prior group review intramurally because it was already being done. Later, directors of the NIH and leaders of the intramural program in the period 19711981 probably did not believe that the regulations should apply to them because they were already highly self-regulated and believed that they were doing what the regulations required. In truth, a great deal had been done.30

1) Protection of HSoR Within the NIH Intramural Program

When the Clinical Center opened in 1953, a document had been prepared, based on extensive discussion, requiring group consideration of clinical research procedures that deviated from acceptable medical practice or involved unusual hazard.31 A Clinical Research Committee (CRC) was organized as a subcommittee of the Medical Board of the Clinical Center. The CRC was designed as an expert body to deliberate scientific and ethical questions in research proposals that were referred to it. Between 1953 and 1966 three types of research were required to be referred to the CRC: research with patients involving unusual hazard (1953), research with normal volunteers (1954), and purely investigational (nontherapeutic) research with patients (1961). The director of the NIH exercised second-level review of normal volunteer studies. Also, from 1953, internal Clinical Center staff who volunteered for research had to meet written consent requirements.

     Prior to 1966, NIH intramural leaders changed policy and procedures to ensure more protection of HSoR. In 1964, an ad hoc committee was appointed by Dr. Jack Masur, Director of the Clinical Center. The group was charged with the evaluation of practices in group review and informed consent since the 1953 document. Led by Dr. Nathaniel Berlin, the National Cancer Institute (NCI), the committee did a major study of the existing system and interviewed each clinical director and many senior investigators. Its recommendations were adopted in July 1966, and prevailed until further revisions were made in 1976 and 1977.

     The specific change was to require review bodies (CRCs) within each institute. These bodies were charged to review patient research that fell outside the boundaries of accepted practice. The institute CRC or clinical director could refer a controversial project to the medical boards CRC. Written informed consent was required only of normal volunteers. Patient consent could be given verbally with a note in the chart by the responsible physician. All normal volunteer studies remained under the aegis of the medical boards CRC.

     Federal regulations of 1974 led to a response from the intramural program and more changes in 19751977. All patient and normal volunteer studies were centralized in a two-level system of review.32 The official review bodies in each institute were renamed Institute Review Subpanels,33 and their membership enlarged to include

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a richer mix of scientists and nonscientists from outside government. The author served as an outside member on a Subpanel at the NCI from 19751977. After 1977, I was responsible for helping NIH intramural officials to complete the process of shaping the Subpanels.

     The drafters of the 1974 regulations were NIH officials whose attention was aimed at reducing research risks in the extramural program.34 Under congressional pressure, the 1974 regulations were hurriedly constructed. Little attention was devoted to bringing the intramural research programs under the regulations, because intramural research was not covered in the 1971 policy that served as a model for the regulations. These officials were also confident that the intramural program was reasonably well regulated.

     Pressure for congruence of applicability of the regulations began to mount in the mid-1970s due to OPRRs mandate and influences of the work of the National Commission on the intramural program. The revised 1981 regulations created congruence (with a loophole), and the intramural programs Assurance was negotiated and approved by OPRR in 1981.

2) Protection of the NIH Intramural Program

A second factor influencing a degree of institutional blindness to the incongruence was the prominent and protected environment of the NIH intramural program in this period. One must assume efforts by NIHs directors to protect scientific freedom and flexibility in the intramural program, as well as their belief that its internal practices of peer review were sound. Flexibility and freedom from restrictions on research were prized values. Many research ideas were born by experimentation and observation in a single patient. Regimentation of almost any kind was considered an anathema.

     The first three years of the authors service in the intramural program (19771987) were marked by challenges to a long tradition of freedom from external oversight and treasured flexibility in research practices.35 The areas of sharpest conflict were over a) complaints from patients and family members about lack of informed consent, b) the obligation to seek informed assent of children to research or major medical procedures, c) disclosure of psychologically sensitive information to patients, d) changing protocol strategy in midcourse without Subpanel permission, e) conflicts of interest in Subpanel review of protocols of Scientific and Clinical Directors of the Institutes, f) testing normal volunteers for psychopathology, and g) complaints of pressure on normal volunteers to complete studies.

     At this time, there were internal struggles between advocates of NIHs past and advocates for change. Many intramural officials felt strong pulls from both sides. The former argued for a type of ethics exceptionalismallied with the strong research culture. NIH scientists and officials with careers spanning the 1960s and 1970s tended to view their roles and mission as exceptional. They also viewed subjects participation in clinical research largely as beneficent, in part due to the quality of medical care received. Also contributing to this view was the fact that the costs of research and patient care were borne by the federal government, including patient and family travel costs and housing. Advocates for change appealed to the larger claims of social movements, of values that informed legal issues in medicine, and of bioethics as a discipline. The work of the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research (19801983) made a strong case for these claims bearing on the practice of medicine. The work of the Presidents Commission had effects in the intramural program. The same officials who wrote the 1974 regulations had been strongly influenced by the work of the National Commission and the Presidents Commission. They saw the imperative for congruence of public accountability between the two programs and effected it in 1981.

3) Social Distance Between Extramural and Intramural

A third factor was the social distance between intramural and extramural programs described above. Each program had different leadership who rarely talked with one another. Neither wanted to be governed by the other. Failure of intramural leaders to communicate with extramural leaders was a significant reason, among others, why the protection of HSoR was not extended to the intramural program.36

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B.
  
Problems and Conflicts Linked to OPRRs Location
1.
  
OPRR’s Authority and (NIH’s) Institutional Blindness to Conflicts of Mission and Interests

OPRRs authority to require Assurances derives from the 1974 Act, which formalized the practice of obtaining written Assurances from DHHS-funded research institutions of their commitment to the ethical conduct of research. Before the 1974 Act, NIH had already developed such Assurance documents with many research universities, which were reviewed by OPRR. Even today, approval of an Assurance does not involve a site visit but reviews of paperwork and telephone discussions.

     OPRRs Assurances are of several types. MPAs pledge compliance for all federally funded projects as well as a voluntary pledge regarding compliance in the context of privately funded research. Renewals are for a five-year period. OPRR currently has 448 MPAs with 756 entities. At non-MPA institutions, a Single-Project Assurance agreement must be negotiated with OPRR for each individual study. OPRR must negotiate each of these agreements as well as approve the consent document. OPRR today is holding approximately 3,000 active Single-Project Assurances. There are also cooperative project Assurances for large multiple site studies. Today, OPRR has more than 1,500 active cooperative project Assurances.

     The NIH is an MPA holder with the OPRR. OPRR is the authority for assessing the NIHs compliance with federal regulations to protect human subjects. There have been longstanding concerns about the independence of OPRR and its ability to oversee the NIH itself, especially the NIHs intramural program. The GAO report to Senator Glenn cited above pointed to a potential weaknessbecause NIH is both the regulator of human subjects protection issues as well as an institution conducting its own human subjects research. The Director of NIH, therefore, has responsibility for both the success of NIHs intramural research program and for the enforcement of human subjects protection regulations by OPRR.37 The GAO report was also critical of the fact that it took the NIH five years to respond to compliance violations in the intramural program as noted by OPRR in 1991.

     A recent report of the Human Ethics Research Group of the University of Pennsylvania recommended that the placement and role of the (OPRR) in the regulatory system should be reassessed. The report stated:

The primary mission of the federal regulations is to protect research subjects. One important obstacle to reform in this area is structural: The agency charged with enforcing and interpreting the regulations, the OPRR, is part of a larger bureaucracy that is also its major client and one of the nations leading sources of research funding, the NIH. As a matter of principle, the agency should not be located within the structure of any government funder, and its charter should specify that it is independent. Obviously, the agency would have to continue to be accountable to the professional and lay constituencies which its serves, and a suitable reporting structure would have to be devised.38

     Dr. Harold Varmus, NIH Director, denied any conflict of missions or institutional interests. He wrote in response to the GAO report, In fact, the OPRR oversees and interacts with the NIH just as with any extramural institution.39 Dr. Varmus argued that there was no weakening of OPRRs independent oversight and authority, because the lines of authority of the NIH Deputy Director for Intramural Research and the OPRR Director do not cross within NIH. He also attributed the five-year span to resolve the violations to the complexity of fully implementing the corrective actions rather than a function of weakness in the OPRRs ability to enforce human protection regulations within the NIH organizational structure. Dr. Varmus did not discuss the nature of the complexity or address the proposition that the NIH was demonstrating by its behavior the basic conflict of institutional interests. His answer to GAOs critique was essentially that it was resolved internally as a matter of lines of authority. The GAO report rightly reiterated before closing, We disagree with NIHs conclusion and believe that a potential weakness exists in OPRRs ability to enforce human subject protection regulations within NIH.40

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     Representative Shays (R-Conn) questioned Dr. Varmus at a recent (May 8, 1997) hearing of a House subcommittee on the conflict of interest issue in regard to the location of OPRR at the NIH. Dr. Varmus responded, as reported in The Blue Sheet:

It is important to remember that the office (OPRR) does not have any vested interest in seeing the research go forward.The research is being funded by CDC or the institutes, each of which has its own authorization and its own appropriation and it is the institutes that are responsible for funding the studies, so there really isnt any conflict of interest.41

     If Dr. Varmus was correctly quoted, this answer evades the basic question of conflict of missions and interests between OPRR and NIH by focusing on funding as the causative factor of conflicts of interest. The fundamental question is whether OPRR is less than effectivedue to pressure from conflicts of interestsby being located at the NIH. In my view, the GAOs term potential weakness as applied to OPRRs ability to enforce the regulations within the NIH is more accurately termed a past, present, and persistent weakness due to location in a powerful parent organization that, in effect, looks down on OPRR, rather than respecting its authority and moving quickly to correct violations.

     On behalf of human subjects, OPRR as the enforcer of federal regulations can use requirements for IRB review and informed consent to reduce excessive risks. However, when it comes to confronting powerful political and bureaucratic interests, OPRRs power on behalf of human subjects is greatly limited by its location and identity as an office of the NIH. OPRR does not, as a matter of fact, have effective and independent oversight over NIHs intramural or extramural programs, nor the research programs of other DHHS agencies, e.g., the CDC or the FDA, on the relatively rare occasions when it conducts or sponsors research. The records and documents that I have examined, while confidential in many details, strongly support this finding.

     The tools that OPRR has developed in order to gain compliance from other institutions are: 1) fear of loss of funding, 2) respect for OPRR (the office/the authority), 3) respect for the primacy of human subjects protection, and 4) fear of bad publicity. The first tool is utterly useless in PHS agencies, since funding for the agencies is assured and self-administered. The second tool is greatly diminished in PHS agencies, because they perceive OPRR as a small and weak office within the NIH. Respect for the primacy of HSoR protection is missing to an often startling degree in PHS agencies, as evident in recent documents which I have examined. Taken all together, OPRR lacks the political capital to 1) impose serious measures and 2) to move an agency quickly towards correction of problems, especially when CDC or NIH performance regarding compliance is a subject of scrutiny.

Specific Examples:

The following are specific examples of problems posed by OPRRs location:

1) Burdened policy and rule-making process. Proposed changes in rules or regulations must be vetted by officials at a minimum of 11 sign-off points within the NIH bureaucracy, even before moving out to PHS and DHHS levels.42 Each one of these levels of bureaucracy has its own vested interests in funding of science, in a scientific mission, or in an aspect of NIH-related activity. The process of consideration of rules and policy changes regarding protection of human subjects is subjected to multiple sets of vested interests in an institution that is supposed to be regulated by OPRR.

2) Resources. OPRRs resources (i.e., funding and staff) have remained static for years, despite growth through the 1980s and 1990s in appropriations and a concomitant increase in volume of proposals for biomedical and behavioral research sponsored by the NIH. OPRR is currently funded at $2 million with 22 staff members who devote some or all of their time to HSoR protection and another eight staff members devoted to animal

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welfare. That figure includes two volunteers and a consultant who have been recruited to the workforce. Congress itselfnot the agency that would have to divert funds that it might wish to expend for other purposesis the proper body to assess the funding and staffing needs of a national agency for oversight of human subjects.

3) Climate and morale. The performance of OPRR employees and promotions and awards are assessed by officials in an agency responsible for a scientific mission that houses OPRR. Although the performance of any OPRR director and his or her small staff may be outstanding, considered within the circumstances and pressures within which they work, the decisionmaking climate and morale are too dependent on concern about consequences within the NIH itself for the OPRR.

4) Lack of respect for OPRRs authority. OPRR is specifically located within NIHs Office of Extramural Research. In an interview43, the Offices Deputy Director, Mr. Geoff Grant, described various compliance requirements governing human subjects, animal welfare, and conflict of interest as a robbery that is distracting to research. Dr. Ellis asked him if he had been quoted accurately in the article, and he verified that the quote was indeed accurate.

     Another example of lack of respect emerges by comparing the time required for the NIH to make changes regarding compliance with the performance of other institutions. GAO identified 17 instances (including NIH itself) from 19901995 in which OPRR imposed a restriction on an institutions authority to conduct HSR. GAO found those restrictions were lifted by OPRR in most cases after 12 to 18 months, when appropriate institutional corrective actions were taken. The NIH needed five years to implement corrective actions after being cited by OPRR in 1991 for compliance violations.

     Analysis of time domains of OPRRs governance of HSoR protections in another DHHS agency (documents are marked confidential) is similarly telling. The agency reported to OPRR, and OPRR independently identified a number of instances in which the agency failed to ensure that performance site institutions (in the dozens) conducting agency-supported research held an applicable OPRR-approved Assurance of compliance with the human subjects regulations. OPRR advised agency officials of these findings during the closing session of an August 1993 site visit. Twenty-one months later (September 25, 1995), OPRR reported that ...agency officials have informed OPRR that awards management procedures were recently modified to ensure that all institutions participating in human subjects research supported bythe agencyhold applicable OPRR-approved Assurances. However, the truth is that the agency is still working to provide information and documentation to OPRR that will permit Assurance for all of the agencys human subjects research. Four years have elapsed and the problems are still not solved. The numbers involved are very large.

     Responses as sluggish as those seen in DHHS agencies are unknown among other institutions assured by OPRR. The protracted time periods consumed by DHHS research agencies to bring ongoing human subjects research into compliance with (what for these agencies are longstanding) regulations for protection of human subjects demonstrate that OPRR is not effecting proper HSoR protections from its position within the NIH. In the larger framework of government, DHHS and the Office of the President bear the ultimate responsibility for this problem and for initiatives regarding solutions.

5) Misunderstanding the scope of the Assurance. A final example is related to the OPRR-approved Assurance of Compliance held by the NIH. This example illustrates the NIHs lack of understanding of, and/or lack of respect for, the authority of OPRR and, together with the comparatively sluggish response to citations, refutes Dr. Varmus assertion that the OPRR oversees and interacts with the NIH just as with any extramural institution.

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     The July 1, 1992, Assurance is applicable to all research activities that, in whole or part, involve human subjects ifthe research is conducted or supported by or under the direction of any employee of the NIH in connection with his/her institutional duties, regardless of the site of the activity....On February 9, 1994, the NIH official signing the Assurance informed OPRR that NIH has amended the Applicability section of its Multiple Project Assurance [MPA] with the following rewrite:

applicable if the research is conducted or supported by the Intramural Research Program (IRP) of the NIH by or under the direction of any employee of the NIH, regardless of the site of the activity.

     NIH stated the change reflected a more precise statement of the fact that the NIH MPA does not apply to all NIH employees or research activities, but only to those individuals, either intramural or extramural, whose research is conducted or supported by the IRP in connection with their institutional duties.In response (February 14, 1994), OPRR acknowledged receipt of the proposed (OPRRs pointed characterization of NIHs February 9, 1994, memorandum) amendment to NIHs OPRR-approved MPA. OPRR reminded NIH that the terms of the NIH MPA approved by OPRR in July 1992 remain in effect. OPRR stated that it looks forward...to negotiating any changes in the MPA that NIH may elect to pursue. More to the point, OPRR stated: Before OPRR can consider approving the proposed amendment, it will be necessary for NIH to clarify and define with as much specificity as possible the full dimensions of the Intramural Research Program.’” NIH did not respond to OPRR. The revision pursued by the NIH signatory official would have, inexplicably, left the human subjects in research conducted by some number of NIH employees (i.e., those not supported by the IRP) without the institutional protections conferred by an Assurance.

     Some three years later (April 21, 1997), OPRR found that the electronic text of the July 1992 NIH MPA existing on the NIH website differed from the OPRR-approved MPA in an important way. The Applicabilityhad been altered to omit the language in effect (i.e., applicability to research undertaken by ...any employee of the NIH.) and bore the new language sought by NIH in its February 9, 1994, correspondence to OPRR. Within two days after OPRR called this deviation to NIHs attention, the actual Applicability language currently in force appeared on the NIH website.

     In concluding this part, the report has provided examples of the effects of conflicts of interests that arise from a basic conflict of missions between the OPRR and the NIH. The latters mission is to promote, fund, and to conduct biomedical research. The NIHs housing the OPRR is an arrangement that may have been acceptable in the past but does not fit the current scope and mission of OPRR in the 1990s and beyond. The basic mission of OPRR as regulator is organized around the primacy of the rights and welfare of human subjects. Like human subjects themselves, the OPRRs mission is confronted by and too often subjugated to a powerful and complex set of countervailing interests: a) scientific and funding interests and b) political and bureaucratic interests. The best remedies for the aforementioned problems of conflicts of mission and conflicts of interests are independent oversight and unfettered lines of authority.

IV. Lessons from Other Regulatory Agencies

One does not need to look far to find similar histories in two other federal agencies. A clear parallel exists in the creation of the NRC from the AEC in 1974. The AEC came under massive public and congressional criticism for trying at once to promote nuclear power and regulate its uses. Similar incompatibility of functions led to an imperative to move the OGE out of the Office of Personnel Management in 1989. Some of the problems of adequate staffing and freedom of action that burden OPRRs effectiveness were resolved by creating new

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agencies. Both agencies today are independent and adequately funded for their tasks.44 There is a striking contrast between the OGEs and the OPRRs resources for education. OPRR has no staff dedicated solely to education of IRBs, although Congress mandated this role. In 1992, OGE had five staff dedicated to education of ethics practitioners and trainers.

     Both agencies have capabilities that would strengthen OPRR or its successor. They can propose and finalize regulations in the Code of Federal Regulations; visit and/or audit their clientele; promulgate guidance and educational materials for consumption by their clientele; and independently govern pertinent activity within another Federal Department or Agency.

V.
  
Recommendations
A. Elevation and Independent Location

Despite a political climate that mitigates against the direction of these recommendations, the time has come to elevate the OPRR and create an adequate agency with an independent location. Initiatives from the DHHS and the Office of the President would greatly strengthen the plausibility of such solutions. An initiative from the White House is appropriate, inasmuch as OPRRs successor should be separate from the DHHS agencies that it oversees (NIH, CDC, FDA, and others) and have authority in relation to the 17 other Federal Departments or Agencies that conduct HSR according to the Common Rule. OPRR is a consultant to these agencies, but has no direct authority over them. Also, if the direction of universal protection of human subjects is legally and ethically sound, all human subjects of research in privately funded projects and their sponsors will require representation and oversight. That there are many examples and complaints regarding exploitation of most vulnerable research subjects beyond the scope of existing legal protections has been documented by Dr. Ellis in a communication to NBAC.45 If Congress legislates to guarantee legal protection of all research subjects and impose sanctions for violations of federal policies and rules for HSR, broadening the authority of a successor to OPRR to regulate all HSR activities would be a logical step. An agency with such authority would quickly move from negotiating Assurances with research sponsors to a simple requirement for annual registration. Registration would involve research sponsors providing information on the twin protections of HSoR: informed consent and IRB review. Registration would also yield more data about the actual incidence and magnitude of HSR in the United States. This information is not currently available.

     Recommendation 1: That the NBAC endorse the creation by Congress of a successor to OPRR: the National Office of Human Subjects Research (NOHSR). The NOHSR will have all of the present functions of OPRR with respect to DHHS and its Agencies. Additional authority should be given to NOHSR over all Federal Departments or Agencies conducting or funding HSR, as well as over privately funded HSR. The NOHSR should be headed by a single Director46 to be nominated by the President, subject to the advice and consent of the U.S. Senate. The NOHSR should be accountable to Congress and funded by congressional appropriation. A location within the Executive Branch is a logical step, similar to the OGE, but it should be an independent agency accountable to Congress and reporting to the President. The NOHSRs initial resources would require a staff of 45 to 50 individuals and a funding level of $6 million to $7 million.47 The report strongly recommends moving OPRR outside the PHS as a permanent solution to the conflict of missions and conflict of interest problems. If creating a new independent agency may be problematic for Congress at this time, an interim solution would be to relocate OPRR alongside or within an existing and effective independent agency, e.g., the OGE. Other partial solutions would be intolerable. For example, some consider reinventing OPRR by investing its mission and mandate in the Human Subjects Research Subcommittee of the Committee on Health, Safety, and Food, National Science and Technology Council. The Subcommittee was originally chartered to write the Common Rule and continues to meet six times annually as a discussion

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group of issues facing the 17 Departments covered by the Rule. This body has no staff and no funds. Locating OPRR within this weak entity makes no practical or political sense.

     Part of this recommendation is to require that only Subpart A of DHHS regulationthe Common Ruleapply to new research sponsors and private sector institutions. The other subparts of DHHS regulations are dated and require scrutiny.

     Recommendation 2: Congress should also create a National Advisory Committee for Human Subjects Research (NACHSR) through the Federal Advisory Committee Act. NACHSRs role is to be the main source of advice and guidance on HSR policy and ethical issues to the NOHSR and to the nation. The NACHSR (11 to 13 members) will serve as a permanent forum for debate and resolution of issues referred to it by the nations IRBs, new ethical issues arising in HSR, problematic cases, and ongoing interpretation and application of ethical principles and rules governing HSR. The NACHSR would answer longstanding appeals by Katz and others48 for such a body. These appeals for such a permanent body extend back to the report of the Ad Hoc Advisory Panel that examined the Tuskegee Syphilis Study (1973).49 The NACHSR should have terms of office not to exceed three years, with one-third of members able to succeed themselves one time; it should meet quarterly and on special request of the Director, NOHSR, and its chairperson could succeed him or herself for one second term.

     Twenty-seven other nations have established standing national bodies commissioned to work on bioethical issues.50 Seventeen nations have national bodies with specific missions to work on HSR policy and guidance to IRBs. These nations are listed in Attachment 2. The United States should not only create such a permanent advisory body alongside the NOHSR but should lead the rest of the world in strengthening the governmental voice of HSR protections, elevating its status, and providing an independent and less problematic location for it.

Attachment 1

Chart of Sign-Off Points Within NIH

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Attachment 2

Other Nations with Standing National Commissions or Agencies with Oversight for HSR Policy and Practices

Argentina - National Bioethics Commission (1992) - secretarial.

Canada - National Council on Bioethics in Human Research (1989) - Established by the Medical Research Council, National Health and Welfare Canada, and Royal College of Physicians and Surgeons. Defines guidelines, advises IRBs, and promotes public and professional education in research ethics.

Denmark - Central Scientific-Ethical Committee (CSEC) (1978) - Given statutory authority in 1992. Acts on disputed proposals and in cases where a matter of principle needs to be decided.

Danish Council of Ethics - Broader mandate and disagrees with CSEC on issues of preserving brain tissue for research and teaching and on definition of death. Parliament told them to cooperate.

Finland - Finnish National Research Ethics Committee (1991) - A permanent advisory body of the government. Makes proposals, gives expert statements, promotes research ethics (has no teeth).

France - French National Consultative Ethics Committee on Life and Medical Sciences (1983) - Created by the President (Mitterand) to advise the government on issues of bioethics. French Parliament uses its work to make law. Has a small staff.

Hungary - Scientific and Research Ethics Committee (1987) - Established by the Hungarian Scientific Research Council. Parent forum overseeing HSR; coordinates regional research ethics committees, publishes guidance.

Israel - Supreme Helsinki Committee - Convened by the Director General of the Ministry of Health when research in sensitive areas is proposed.

Italy - National Committee on Bioethics (1990) - Created by the President of the Council of Ministers. Provides advice to Parliament (meets in closed sessions, no staff).

Mexico - National Bioethics Commission (1992) - Reports to the Ministry of Health.

Netherlands - Commission on Health Ethics and Health Law (1977) - Sponsored by the Health Council, this commission transmits findings to the government of the work of subcommittees organized by the Health Council. In 1989, Minister of Health created Dutch Interim Central Committee on Ethical Aspects of Medical Research. This national advisory commission on research ethics directly advises local medical ethics boards, not the government; recommendations are nonbinding.

New Zealand - Health Research Council Ethics Committee (1990) - Advises the Health Research Council on ethical issues in research.

Norway - Parliament created three bodies: 1) National Committee for Medical Research (already there but non-statutory), 2) for social sciences, and 3) for science and technology (1989).

Phillipines - National Ethics Committee and IRBs (1987) - Created by Phillipine Council for Health Research and Development.

Poland - Ethics Review Committee in Biomedical Research (1977) - Created by Ministry of Health;

Commission for Supervising Research on Human Subjects (1982) - Created by Ministry of Health and Social Welfare; and Commission for Research Ethics (1991).

Russia - Russian National Committee on Bioethics (1992).

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Sweden - Medical Research Council houses a central committee that oversees local research ethics committees concerned with individual research projects. National Council on Medical Ethics - (1985) - Links science, public, and Parliament.

U.K. - Several bodies, including the Nuffield Council on Bioethics (1991) - A private group that acts as though it was government appointed. Establishes working groups and has an executive secretary and two staff members. No oversight of local research ethics committees.

Source: U.S. Congress, Office of Technology Assessment. Biomedical Ethics in U.S. Public Policy Background Paper, OTA-BP-BBS-105. Washington, DC: U.S. Government Printing Office, June 1993.

Notes

1 The abbreviations HSoR will be used for human subjects of research (focus on the human beings who are research subjects) and HSR for human subjects research (focus on the activities of research involving human subjects).

2 At its May 17, 1997, meeting, the NBAC voted unanimously for this statement: No person in the United States should be enrolled in research without the twin protections of informed consent by an authorized person and independent review of the risks and benefits of the research.

3 McDermott, W., Opening Comments. The Changing Mores of Biomedical Research. A Colloquium on Ethical Dilemmas from Medical Advances, Ann Int Med 67 (Supp.7, No. 3-Part II):3942, 1967. “…the hard core of our moral dilemmas will not yield to the approaches of Declarations (i.e., Helsinki) or Regulations (i.e., the FDAs 1967 human subjects regulations); for as things stand today such statements must completely ignore the fact that society, too, has rights in human experimentation (p. 42).

4 Jonas, H., Philosophical Reflections on Human Experimentation, Daedalus 98:245, 1969.

5 Ibid.

6 Dommel, F.W., Alexander, D., The Convention on Human Rights and Biomedicine of the Council of Europe, Kennedy Institute of Ethics Journal 7(3):259276, 1997.

7 Robertson, J.A., The Scientists Right to Research: A Constitutional Analysis, Southern California Law Review 51:12031279, 1977.

8 This term was coined by Paul Appelbaum, and the widespread power of its influence was ascertained in the Subject Interview Study of the Advisory Committee on Human Radiation Experiments, in which 1,882 patients receiving medical care in 16 outpatient facilities of private and public hospitals were surveyed.

9 Drug manufacturers offer clinician-investigators financial inducements to enter patients into studies, typically $2000 to $5000 per patient. By contrast when a patient is entered into a NIH-sponsored study, the clinician-investigator receives capitation of approximately $1000 per patient to cover the costs of the physician-investigators time, the data managers salary, and additional expenses (secretarial, photocopying, etc.) incurred in participating in the study. Shimm, D.S., Spece, R.G., DiGregario, M.B., Conflicts of Interest in Relationships Between Physicians and the Pharmaceutical Industry, in Spece, Shimm, and Buchanan (eds.),

Conflicts of Interest in Clinical Practice and Research, New York: Oxford University Press, 1996, 323.

10 These problems are described in three recent reports: U.S. General Accounting Office, Scientific Research, Continued Vigilance Critical to Protecting Human Subjects, 1996. GAO/EHS-96-72; Advisory Committee on Human Radiation Experiments, Research Ethics and the Medical Profession, JAMA 276:403409, 1996; and Moreno, J.D., Caplan, A.L., Wolpe, P.R., and the Members of the Project on Informed Consent, Human Research Ethics Group, Updating Protections for Human Subjects Involved in Research, JAMA, 1998 280(22):19511958.

11 Nishimi, R.Y., Testimony for the House Committee on Government Operations, The Federal Role in Protecting Human Research Subjects, 103rd Congress, 2nd Session, September 28, 1994: 158160.

12 The occasion for the interviews was to prepare papers for presentation at the 125th anniversary of the Norwegian Academy of Sciences and for subsequent publication; i.e., Fletcher J.C., The Evolution of the Ethics of Informed Consent. In Research Ethics, Berg K., TranØy K.E. (eds.), Alan R. Liss, Inc., New York, 1983, 187228; Boverman M., Fletcher J.C., The Evolution of the Role of an Applied Bioethicist in a Research Hospital. In Research Ethics, Berg K., TranØy K.E. (eds.), Alan R. Liss, Inc., New York, 1983, 131158.

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13 Erde, E.L., Conflicts of Interest: A Conceptual Overview, in Spece, Shimm, and Buchanan (eds.), Conflicts of Interest in Clinical Practice and Research, New York: Oxford University Press, 1996, 13.

14 Adapted from Erde, see note 13, p. 33.

15 The impact on the NIH of a case involving Dr. Chester Southams research at the Jewish Hospital for Chronic Diseases in Brooklyn, New York, had, in the authors view, the most telling and persuasive influence leading to change. Dr. Southams license to practice medicine in New York was suspended for one year, and then he was placed on probation. For accounts of this case in historical context, see Langer E., Human Experimentations: New York Affirms Patients Rights. Science 151:663665, 1966; Fletcher J.C., The Evolution of the Ethics of Informed Consent. In Research Ethics, Berg K., TranØy K.E. (eds.), Alan R. Liss, Inc., New York, 1983, 187228.

16 The term institutional blindness refers to the end-state of excessive loyalty to the welfare of an institution and ones role within it. The stronger and more uncritical the loyalty to an institution and role, the more impaired are independence of observation, judgment, and action with respect to prevention or moderation of conflicts of interest. Some professions are much better prepared and trained than others to detect and prevent conflicts of interests. Physicians and biomedical researchers do not receive the same degree of education and training about such issues as attorneys and behavioral scientists. For example, because physicians are not trained to look for conflicts of interest, they often find themselves enmeshed in them without recognizing the problem. Spece R.G., Shimm D.S., Buchanan A.E., Conflicts of Interest in Clinical Practice and Research, New York: Oxford University Press, 1996, preface.

17 See the ACHRE report cited in note 10 for description of the norms of the wider research community, at 404405.

18 Jones, J.H., Bad Blood, 2nd ed., New York: Free Press, 1993, 191196.

19 What was the involvement of the NIH, if any, in the Tuskegee study? The pre-1950s NIH was involved in analyzing spinal fluid and autopsy tissues from the subjects. Jones, see note 18, 124, 136. It is likely that no NIH physician-investigator or official was directly involved in the study itself or in its defense against Buxtons challenges. (James Jones, personal communication, November 10, 1997). Dr. John Heller was a junior officer in the PHS Division of Venereal Diseases who was actively involved in the study. Following his retirement as President of Sloan Kettering Hospital, he was in residence at the National Library of Medicine. In an interview with James Jones in 1977, Dr. Heller described his experience in meetings led by Dr. Raymond Vonderlehr, with the medical societies and boards of health of four Alabama counties in 1933: ...no one questioned whether the experiment was ethical; no one even came close to doing so. I dont recall any philosophical discussions at all, declared Dr. Heller. What emerged from his comments was the image of a profession whose members had closed ranks behind a study they were told had real merit. The experiment obviously had struck their sense of scientific curiosity, and it did not occur to anyone to suggest that it should not be conducted. Jones, see note 18, p. 144.

20 Although Peter Buxtun, a PHS employee, challenged the ethics of the Tuskegee study from within DHEW as early as November, 1966, PHS officials did little to heed his criticism. The Tuskegee story was broken by the Associated Press on July 25, 1972, in a report by Jean Heller. Cf. Jones, J.H., Bad Blood, 2nd ed., New York: Free Press, 1993, 188205. The author conducted numerous interviews and 10 focus groups with scientists and clinical investigators at the NIH from 1966 to 1968 in preparation for a Ph.D. dissertation on the ethics of medical research. No one brought up the Tuskegee study. The author was unaware of it until the news story.

21 Beecher, H.K., Ethics and Clinical Research, N Engl J Med 74:135460, 1966. The occasion for the interviews was to prepare papers for presentation at the 125th anniversary of the Norwegian Academy of Sciences and for subsequent publication, i.e., Fletcher, J.C., The Evolution of the Ethics of Informed Consent. In Research Ethics, Berg K., Tranfy K.E. (eds.), Alan R. Liss, Inc., New York, 1983.

22 In an earlier interview, Charles R. McCarthy, former director of the OPRR, commented: It seems to me thatfor the most part government was passive, a few farsighted individuals such as Shannon and Stewart in the Executive Branch, and Ted Kennedy in the Congress, initiated procedures that have matured into a remarkable system. These few individuals were both learners and teachers, but the government as a whole was at best a sleepy, distracted pupil, awakened periodically by a scandal, but otherwise content to get by without having to recite (personal communication, May 14, 1993).

23 Surgeon General, PHS, DHEW, Investigations Involving Human Subjects, Including Clinical Research: Requirements for Review to Ensure the Rights and Welfare of Individuals, PPO 129, Revised Policy, July 1, 1966.

24 DHEW, 45 Protection of Human Subjects 46, Federal Register, Vol. 39, No. 105, Part II, 46.1(a) (b), 1974.

25 Federal Register, Vol. 46, No. 16, January 26, 1981.

26 45 CFR 46.101(a), 56, Federal Register 28003, June 18, 1991.

27 The National Institutes of Health Revitalization Act of 1993, Public Law 103-43, June 10, 1993, Section 492A.

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28 This story is well told in Faden, R.R., and Beauchamp, T. L., A History and Theory of Informed Consent, New York: Oxford University Press, 1986, 206215.

29 Ibid., 208.

30. A fuller history of HSR protection and the evolution of prior group review in the NIH intramural program is found in Boverman M., Fletcher, J.C., the Evolution of the Role of an Applied Bioethicist in a Research Hospital. In Research Ethics, Berg K., TranØy K.E. (eds.), Alan R. Liss, Inc., New York 1983, 131158.

31 NIH. 1958. Group Consideration of Clinical Research Procedures Deviating from Accepted Medical Practice or Involving Unusual Hazard. (Memorandum, approved by the Director, NIH, 1953); Sessions, S.M., What Hospitals Should Know About Investigational DrugsGuiding Principles in Medical Research Involving Humans, Hospitals 32:4464.

32 Lipsett, M.B., Fletcher, J.C., Secundy, M., Research Review at NIH, Hastings Center Report 9:1827, 1979.

33 These programs were called Subpanels to overcome the difficulty of having each chartered under the Federal Advisory Committee Act, because each had one or more outside members.

34 The members of the drafting committee were Charles Lowe, Jane Fullerton, and Charles McCarthy (Charles McCarthy, personal communication, November 11, 1997).

35 See note 30.

36 McCarthy, C.R. (personal communication, November 11, 1997).

37 U.S. General Accounting Office, Scientific Research, Continued Vigilance Critical to Protecting Human Subjects, 1996. GAO/EHS-96-72, 20.

38 Project on Informed Consent of the Human Research Ethics Group. Updating Protections for Human Research Subjects, submitted for publication, 1997.

39 Letter, Harold Varmus to Sarah F. Jaggar, February 15, 1996 (see GAO report, 33).

40 Note 37, at 25.

41 Research Administration, OPRR Location Questioned by Rep. Shays at Hearing, The Blue Sheet 40(20):2, May 14, 1997.

42 See Attachment 1 for a chart showing sign-off points within the NIH bureaucracy. Proposals for changing federal regulations that arise from NBACs deliberation on HSR, e.g., regarding studies involving cognitively impaired subjects, would in the near future necessarily be introduced through OPRR and be subject to the same vetting and sign-off process depicted in Attachment 1. Many of the entities in Attachment 1 have strong vested interests in the subject matter.

43 The NIH Record, June 18, 1996, 4.

44 U.S. Office of Government Ethics, Second Biennial Report to Congress, March, 1992; Walker, J.S., A Short History of Nuclear Regulation, January 1993 (NUREG/BR-1075).

45 Letter, Gary B. Ellis to James F. Childress, April 10, 1997.

46 The preference for agencies headed by a single administrator over a commission form of agency has been generally favored for some time by scholars in the administration sciences and based on research sponsored by the Committee on Government Operations. See 95th Congress, 1st Session. Study on Federal Regulation. Vol. 1. The Regulatory appointment Process, January, 1977.

47 Ellis, Gary B. (personal communication, October 18, 1997).

48 Katz, J., Do We Need Another Advisory Commission on Human Experimentation? Hastings Center Report 25(1):2931, 1995.

49 U.S. Department of Health, Education and Welfare, Final Report of the Tuskegee Syphilis Study Ad Hoc Advisory Panel, 1973, U.S. GPO: 1973-747-022/5334, Region No. 4.

50 See Nishimi testimony, note 11.

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PRIVACY AND

CONFIDENTIALITY IN HEALTH RESEARCH

Commissioned Paper

Janlori Goldman and Angela Choy Georgetown University

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The Health Privacy Project is dedicated to raising public awareness of the importance of ensuring health privacy in order to improve health care access and quality, both on an individual and a community level.

Abstract

Health research can offer many benefits, such as the improvement of clinical practices, public health programs, and health products; the reduction of public health threats; the advancement of basic biomedical science; and the development and improvement of pharmaceuticals and medical devices.1 All of this research, however, requires access to a great deal of individuals data. This need for data often runs counter to the publics desire to keep health information confidential. The public may have some reason to be concerned about the confidentiality of their health information. At present, there is no comprehensive federal law protecting the confidentiality of health information. The patchwork of state and federal laws varies in scope and tends to protect specific types of information collected and maintained by particular entities. A significant amount of research is conducted without federal oversight or review. Ultimately, the publics fear and anxiety over the loss of privacy and confidentiality can threaten the research initiatives meant to benefit them. The federal government, researchers, Institutional Review Boards (IRBs), and research institutions will need to work together to provide strong privacy and confidentiality protections to build public trust and encourage continued participation in research.

I. Introduction

Individuals share a great deal of sensitive, personal data with their physicians.2 Full disclosure to health care providers is necessary for accurate diagnosis and treatment of the patient. While patients may expector desireto have all of their health data kept confidential, it is not possible to protect confidentiality absolutely. In seeking health care, patients will likely experience some loss of privacy and confidentiality. Health data may be shared with pharmacies, employers, researchers, and even marketers for reasons not related to diagnosis and treatment. In fact, it is estimated that when a person goes to the hospital, approximately 150 different people will look at his or her records.3 But since patients are often not involved in decisions about the disclosure of their health data, they may be taken by surprise when they learn of disclosuresincluding disclosures to researchers. A recent Department of Health and Human Services (DHHS) Inspector General report found that patients are often unaware that their records are being reviewed by persons other than their physicians and these records may be used to contact them about participating in research.4 Historically, there has been tension between privacy advocates and researchers over how to address privacy and confidentiality issues. Consumer advocates often view research initiatives as threats to individual privacy, while researchers may treat privacy as a barrier to improving health. There is a fear that protecting confidentiality will prevent the free flow of health data for research, public health initiatives, and other health-related activities.5 Protecting privacy and confidentiality and promoting health, however, are values that go hand-in-hand. Without trust that the personal, sensitive data that they share with researchers will be handled with some degree of confidentiality, subjects will not participate in research projects.6 If people continue to withdraw from full participation in their own care, the personal health data from medical files and patient databases that researchers may rely on to recruit subjects or conduct records-based studies will be inaccurate and incomplete.

     Researchers therefore need to be aware of potential privacy and confidentiality issues throughout the course of the research to incorporate privacy protections and minimize potential breaches of confidentiality. Public policies should also incorporate privacy standards so individuals will have greater trust in research enterprises and to ensure that there is accountability for breaches of confidentiality. Researchers may becoming more attentive to issues of security and use physical and technological measures, such as locked filed cabinets and

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passwords to help protect against unauthorized access to data. But these security requirements do not answer the larger policy questions about how data should be used, shared, and exchanged.7 The key issue here is to determine which disclosures in health research are acceptable invasions of privacy and which limits are acceptable on confidentiality.

     Currently, there is no comprehensive federal law that protects the confidentiality of all personal health data. Third-party access to medical records and other dataincluding researcher access to this datais governed by a loose configuration of state and federal law, common law, and professional ethics. There are federal regulations that apply to some research involving human subjects. These rules, however, may be applied unevenly and may not be relevant for different kinds of research. Furthermore, it is generally believed that a significant amount of research falls outside the scope of these regulations. Reform efforts that seek to bolster existing rules and to expand the kinds of research subject to the rules, however, are met with a common critique: that the existing system of research review is already over-extended and that new requirements could place undue burdens on the system.

     This paper addresses 1) the definitions of privacy and confidentiality; 2) the potential threats to privacy and confidentiality in research with a focus on the use of medical records and databases in health research;8 3) public concerns and potential consequences or harm from violations; 4) the existing statutory and regulatory requirements with regards to privacy and confidentiality in health research; 5) the potential impact of DHHS proposed federal health privacy regulations on health research; 6) what data exist on current research review policies and practices regarding privacy and confidentiality when health research is subject to IRB review and when it is not; and 7) what data exist regarding enforcement of the privacy and confidentiality requirements in the Common Rule. It concludes with a set of recommendations for addressing some of the weaknesses in the current system of research review.

II. Defining Privacy and Confidentiality

The terms privacy and confidentiality are often used interchangeably, although they are distinct concepts. Privacy is a state or condition of physical or informational accessibility.9 Many sources attempt to define and distinguish privacy and confidentiality. One frequently cited source is Privacy and Freedom, by Alan Westin, who defines privacy as the claim of individuals, groups or institutions to determine for themselves when, how and to what extent information about them is communicated to others.10 Professor Anita Allen, Professor of Law and Philosophy at the University of Pennsylvania, breaks down the concept of privacy into four types: physical privacy, informational privacy, proprietary privacy, and decisional privacy. Physical privacy is spatial seclusion and solitude. Informational privacy is confidentiality, secrecy, data protection and control over personal information. Proprietary privacy is control over names, likenesses and repositories of personal identity. Decisional privacy is allowing individuals, families and other nongovernmental entities to make many of the most important decisions concerning friendship, sex, marriage, reproduction, religion, and political association.11 A common justification for protecting privacy is the principle of respect for personal autonomy—“personal rule of the self that is free from both controlling interferences by others and from personal limitations that prevent meaningful choice.12 The right to privacy should not be confused with the right to act autonomously. As Tom Beauchamp and James Childress explain in Principles of Biomedical Ethics, rights of privacy are valid claims against unauthorized access based in the right to authorize or decline access.13 In an 1890 law review article, Louis Brandeis and Samuel Warren argued that the right to privacy is the right to be let alone, the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.14 Today, the right to privacy is not only a right to retreat from the

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world but also a right to step forward and participate in society, sharing information about oneself with others while still maintaining some control over the data.15 Rules of confidentiality protect an individuals privacy interests in the data collected about him or her. In cases involving the collection, use, and disclosure of health data, it becomes even easier to confuse the terms privacy and confidentiality. A person, however, can surrender some privacy and still maintain some control over the information generated about him or her. Alan Westin distinguishes confidentiality from privacy by defining confidentiality as how personal data collected for approved social purposes shall be held and used by the organization that originally collected it, what other secondary or further uses may be made of it, and when consent by the individual will be required for such uses, whereas information privacy is the question of what personal information should be collected or stored at all for a given function.16

III. Issues Confronting Researchers and IRBs: Threats to Privacy and Confidentiality

Again, there is no comprehensive federal law that protects the confidentiality of personal health data. However, there are federal regulations that apply to most research receiving federal funds, commonly referred to as the Common Rule, or research conducted in anticipation of approval by the Food and Drug Administration (FDA). Most federally funded research involving human subjects falls under the Common Rule,17 a federal policy adopted by 17 federal agencies in 1991 to protect the rights and welfare of human research subjects, including their personal health information.18 The FDA has established similar regulations for research involving the development of a product regulated by the FDA.19 The Common Rule requires research organizations to establish and operate IRBs, administrative bodies, to protect the rights and welfare of human research subjects. However, privately funded research that does not involve a federally regulated product is not subject to federal requirements. Some institutions that are not required to follow the Common Rule may choose to subject all research at their institutions to the Common Rule, while others apply the federal rules only where required. For example, an institution that conducts a large number of federally funded studies may enter into multiple project assurances (MPAs), which require all research at that institution to comply with the Common Rule.

     Given the limited applicability of the federal regulations, it is generally believed that a significant amount of human subjects research is conducted in the absence of federal regulation, such as some privately funded research conducted by pharmaceutical companies, health plans, and universities not in anticipation of product approval by the FDA. An IRB chair commented at a U.S. House Commerce Committee hearing in May 1999 that Today, if I want to study the medical history of Congressional representatives, and I dont use federal funds, I may be able to get access to your medical records without going through any meaningful review process.20 A recent Institute of Medicine (IOM) workshop found that much health services research using large databases falls outside the scope of federal regulations because the research is privately funded by organizations without federal MPAs.21 In addition, even where organizations submit research to an IRB for review, certain activities that involve identifiable health data and other human subjects research may not be defined by the organization as research, and therefore are left without any oversight and accountability.22 For example, the IOM found that IRBs vary in how they interpret federal guidelines regarding the definition of research, specifically whether or not a project is intended to yield generalizable knowledge.23 Some institutions may differ in how they interpret activities that might be considered quality assurance or quality improvement, taking the view that as long as the findings will be disseminated outside the division or department conducting the project, the project is research and thus subject to IRB review.24 While IRB review does not necessarily ensure that issues of privacy and confidentiality are adequately addressed, it does provide some level of accountability and oversight.

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     Health researchers encounter privacy and confidentiality issues at various stages of research, from recruitment of participants and data gathering, to data processing and analysis, to data storage, data dissemination, and the publication of research results. Researchers and IRBs need to be aware of and understand the range of privacy and confidentiality concerns in health research to adequately protect the privacy interests of their subjects and the confidentiality of personal health data.

A. Recruitment and Follow-Up

Where there is a lack of direct contact in research with subjects, individuals may have little or no knowledge that data collected from them in a clinical setting are being used for purposes other than for their treatment and payment. For research involving interaction with individuals, such as clinical trials, prior to contact with potential research participants, the researcher has to determine where and how to recruit participants. Most people are not concerned about researchers who are also physicians searching their own patient database to identify eligible subjects; they are concerned about someone other than their physician accessing their medical records to screen for potential subjects and contacting them about participation.25 A physician may have patients who would meet the criteria for subjects in a research project, but the potential participants may consider direct recruitment by a researcher a violation of privacy, whereas recruitment by the physician may be considered acceptable. Patients expect a certain level of confidentiality when they share sensitive information with their physicians. Therefore, when individuals are contacted by someone whom they were not aware had access to their medical information, they may consider the contact an invasion of privacy.

     A recent DHHS Inspector General report on recruitment of subjects for industry-sponsored clinical research found that in a rush to recruit subjects, investigators might compromise privacy and confidentiality. The Inspector General found that patients were often unaware that someone other than their physician may be reviewing their records and using them to contact them about participating in research. Some IRBs have received complaints of harassment from potential participants.26 However, nothing in the federal regulations specifically prohibits access to these records by researchers, and there is little guidance from DHHS on acceptable recruitment practices.

     After a research project is completed, a researcher also may decide to conduct follow-up studies or a different project. However, the subjects of the first study may not have been asked whether they would want to be contacted for other studies, and some of them may find subsequent contact from the researcher an invasion of privacy, particularly if contact occurs many years after completion of the first project.

B. Access to Health Records and Databases

Even if a research protocol does not call for direct contact with individual subjects, the researcher still must determine whether or not he or she will require access to personally identifiable health data. There are confidentiality concerns when researchers want access to personally identifiable data from health care providers, insurers, state registries, and any other entity that collects data from individuals in the course of treatment and payment. For example, many states maintain a cancer registry of which many patients are not even aware. Researchers may have access to the registry to conduct epidemiological studies and examine trends among cancer cases on behalf of a states health department. In a few states, researchers can obtain access to data from the cancer registry without first obtaining permission from the patient.27

C. Redisclosure

After a researcher receives or collects health data, there are confidentiality concerns regarding redisclosure of those data to third parties. Latanya Sweeney, Assistant Professor of Public Policy and of Computer Science at Carnegie Mellon University, stated at a recent Senate briefing that even if the original data holder imposes

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privacy and confidentiality requirements on a third party requesting access to the data, once the data are disclosed to the third party, the third party may redisclose the data to others without restrictions.28 Similarly, Dr. Carolin Frey, Chair of the Geisinger Medical Center IRB, stated at a July 1999 House Commerce Committee hearing that when identifiable data travel between institutions, it is possible for only [a] portion of an individuals record to be within the purview of an IRB.29 As an example, she noted that medical records are protected by the hospital IRB when the records are used in research but are not protected when the data travel to a third party payer.

     Some researchers, however, are restricted from redisclosing data. For example, for data requests from other DHHS employees and contractors, the Health Care Financing Administration (HCFA) requires data use agreements that indicate the requestors understanding of the confidentiality requirements of the Privacy Act and HCFAs data release policies and procedures. These agreements include a requirement that those receiving information from HCFA use it only for its approved purpose. Subsequent use for a different purpose is prohibited without further approval.

     Without uniform rules for all research that limit redisclosure of personal health data, data collected for one purpose will continue to be disclosed and used for another purpose without the knowledge or consent of the subjects of the data. For example, for 52 years, research has been conducted using data from medical examinations, food diaries, X-rays, and blood samples of 10,000 Massachusetts residents in a long-term study known as the Framingham Heart Study. Originally, the participants signed on to a National Institutes of Health (NIH)-funded heart disease project.30 Now, Framingham Genomics Medicine (FGM) proposes to correlate the genetic information from blood samples with the studys clinical data to create a huge database and sell the data to biotechnology and pharmaceutical companies. The major concern here is whether or not FGM will contact all the living study participants and relatives of the deceased for informed consent to use the information for this new project. Will strong and effective measures be implemented to protect the privacy of the subjects and the confidentiality of the genetic information? How meaningful is informed consent if sensitive health information is used for different purposes years later?

     In another example, in December 1998, Icelands parliament authorized a license to deCODE genetics, a for-profit U.S. corporation, to use data already collected by the government to create a database (Icelandic Healthcare Database) of the medical records of all Icelandic citizens. This privatization plan raised a number of ethical questions, including the role of individual informed consent. The primary purpose of deCODE is to collect and analyze DNA samples for commercial purposes. Individual consent was not obtained prior to the transfer of medical data to the database, although individuals have the right to withhold their records by filing paperwork to opt out of the program.31 Those who do not opt out are presumed to give consent.

D. Conflicting Requirements and Policies

In a research study, it also may be technically difficult for an IRB and investigators to determine how it is required to protect privacy and confidentiality. Inconsistencies or conflicts may exist among legal requirements and institutional policies and practices. Some IRBs, for example, believe that unless a study impacts ongoing care, the consent forms for the study should not be included in a subjects medical record.32 There is a fear that the consent form itself may reveal information about a patient that the patient wants to keep confidential. In one project, a medical resident discovered that his consent form for participation in research was placed in his medical record, even though the research had nothing to do with treatment. In fact, he was participating as a control subject for a study on coping behavior involving HIV. While the resident was not HIV-positive, the consent form in his medical record indicated he was participating in a study involving HIV. The Joint Commission on the Accreditation of Healthcare Organizations (JCAHO) requires consent forms to be included in a patients medical record, so in compliance with JCAHO requirements, the medical records department at this hospital

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placed the consent form in the residents medical record. There is limited guidance for IRBs on how to reconcile conflicting policies and requirements.

E. Other Potential Violations of Privacy and Confidentiality

Researchers and IRBs also face other potential privacy and confidentiality issues. The method of contact, such as a postcard notice or e-mail regarding participation in a research project, may be considered a breach of confidentiality, because information on the postcard or e-mail may suggest information that the potential subject considers confidential. For example, a recruitment postcard for a study that is sent to an individuals home may suggest that the recipient of the postcard has a specific disease. Even if the individual does have the disease, he may have kept it a secret from the rest of the household, and the postcard would be considered a breach of confidentiality.

     If subjects get paid for participation in a project, parties providing compensation also need to be sensitive to concerns that the form of payment may contain information that would indicate to a third party a subjects participation in a research project. For example, there may be information on a check that could constitute a confidentiality breach, not only because it is apparent to the bank that the recipient of the check is a research subject, but because the information can presumably be transferred to an affiliate of the bank, such as an insurer.

     Another potential breach of confidentiality can occur with projects that involve periodic tests or visits with a physician. Reminders are often sent out to subjects at their home addresses, which may have information suggestive of the addressees health status or participation in research. There are also special considerations for research involving minority groups. A research study may focus on a particular group because of specific physical, social, or cultural attributes, possibly threatening the privacy of a small community. Dr. William Freeman, IRB chair at the Indian Health Service, stated at an IOM workshop that with certain minority groups, such as the American Indian and Alaska Native, the communities are small and isolated and the members are well known to each other, making it difficult to ensure individual privacy.33 If a minority group, however, perceives a research study as a threat to the privacy of the individual members or the group, they will be less likely to cooperate with the researchers.

F. New Technology

Individuals usually expect that the information they provide to their physicians will be kept confidential. Today, a growing number of disclosures occur without the express consent of the individual, stimulated in part by technological and scientific advances. The growth of information technologies for the delivery and payment of health care may offer significant opportunities for improved access to quality care at reduced costs. However, growing demands for access to health data and easier and cheaper storage and access to such data pose greater threats to privacy and confidentiality.

1. Health Databases

Organizational and structural changes in the delivery of health care call for the use of information technology to coordinate care and to integrate and disseminate information among providers, institutions, and managed care organizations. The demand for better quality care and the desire for reduced health care costs have also contributed to the rising need for patient data. The management of care in this environment requires data about what, where, and when health care services are provided, by whom for whom, and at what cost to determine the value and appropriateness of care. Such changes have led to the creation of large databases of health information, data linkage within and across data sets, and the ability for more people to access medical records and other personal health data from remote locations.

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     In fact, most data that move through health information systems end up in databases.34 While many of the databases are not organized optimally for research, researchers can avoid the costs of original data collection by using the available data. For example, one of the largest databases in the world is the U.S. Medicare database system, which process over 600 million reimbursement claims records yearly.35 Researchers have access to this database provided that they meet HCFAs criteria for release of the data.36 The database includes data on enrollment, eligibility, and utilization. The data may not be of the highest quality or fully standardized, but they provide a great deal of information about the health status and health care of millions of patients. With the recent release of the final rule on national standards for electronic transactions by DHHS, however, there will be greater standardization of data transmitted for health care transactions.37 Standardization creates the potential for data linkage within and between data sets. Data linkage provides greater opportunities for research. It allows researchers to make associations between data on subjects from one source or multiple sources. For example, researchers can link workplace exposures with suspected illnesses. Such research may not require identifiable data, but the existence of large databasesespecially those that are public databasesraise particular concerns. Chief among these concerns is that the more data are linked from different sources, the more likely it is that individual people or particular groups of people can be identified. Data may be aggregated from several sources without individual knowledge or consent and accessed by parties outside the health care treatment environment.

     As Latanya Sweeney demonstrated at a policy briefing on medical and genetic privacy on July 14, 2000, nonidentifiable data can be combined with publicly available data to easily identify people.38 For example, most cities sell locally collected census data or voter registration lists, which include the date of birth, name, and address of the residents. These data may be linked to de-identified medical data, containing dates of birth and zip codes, to re-identify individuals, particularly in smaller communities.39 With an increasing focus on the health of a population rather than an individual comes the greater need for comparable data across health care organizations. Some of the sources of the data come from hospital databases, but a growing number of databases exist outside the health care environment. If personally identifiable data are used, the question is whether or not the subjects of the data need to be asked consent for the new use of their information. Locating and contacting subjects may be more difficult and prohibitively expensive. Where consent is waived, however, it is particularly important that there is objective review of the research protocol to ensure that safeguards are in place to respect the privacy of the subjects and protect the confidentiality of the data.

2. Internet

Increasingly, Internet sites are created to help consumers, patients, and health care professionals find information about their health and health care. Internet sites include peer support sites, sites that provide information on the latest research, and sites that provide a means for providers and patients to communicate outside the office.40 Researchers are using Internet chat rooms to conduct studies with and without the knowledge of chat room participants. According to clinical psychologist Storm King, there are easily hundreds of researchersconducting research on the Internet.41 Conducting research on the Internet presents new concerns because of the ability of both the participants and the researchers to assume anonymous or pseudonymous identities. In addition, there are new challenges, such as how to obtain informed consent, how to determine the expectations of privacy, and how to determine what data provided online would be treated as confidential. According to Jeffrey Cohen, Associate Director for Education, former Office for Protection from Research Risks (OPRR), breach of confidentiality is the primary source of harm in most Internet research.42 While health-related sites are generally more attentive to the need for privacy policies, some Web sites have yet to post privacy policies.43 For example, Pharmaceutical Research Plus, Inc., helps researchers recruit

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participants via the Internet by offering a Web site at www.clinicaltrials.com that allows individuals to sign up for participation in clinical trials. On the patient registry page, an individual is asked to provide various identifiable data about himself or herself, including name, address, phone number, e-mail address, date of birth, and illness of interest. The site, however, is not secure, and there is no privacy policy that informs individuals what data are being collected, for what purpose, and who will have access to the data.

     The lack of confidentiality protections is particularly troubling because Internet users may consider themselves anonymous or their activities as private. Chat room participants, especially those participating in support groups, often perceive these chat rooms as private sites when they exchange sensitive information about themselves.44 However, researchers are often not asking for consent to quote the participants, and a review board is not reviewing the research to ensure that the research is conducted ethically.45

3. Genetic Research and Testing

Scientific developments in genetics have given society a greater understanding of alterations in genes that are associated with human diseases, providing opportunities for better diagnosis, treatment, and prevention of disease. On June 26, 2000, two groups of scientists announced that they had completed a rough draft of the human genome, a breakthrough that may revolutionize the practice of medicine.46 With a rough draft complete, biomedical researchers can begin their search for disease-causing genetic mutations and develop therapies to treat disorders at the molecular level. Scientists may eventually be able to identify from birth the diseases a person may develop and tailor treatment to that individual.

     However, with the ability to better detect genetic aberrations comes the questions of how genetic information should be protected and used and who should have access to that information. Genetic research on stored samples, such as blood samples, biopsy specimens, and organs and tissues, raises questions about privacy, consent, and confidentiality. Unlike most other biomedical research, genetic studies involve families. Research findings about individual subjects have direct implications for biological relations of the research participants because they may reveal information about the likelihood that members of the family are carriers or will be affected by a disease. The ethical question here is whether or not the research findings become part of the study without consent from the subjects of the findings.

     Genetic research involving groups of people with specific genetic attributes also raise concerns about privacy. The Iceland example mentioned earlier concerns not only individual privacy but also group privacy. Like the American Indians, the Amish, and Ashkenazi Jews, Icelanders have a relatively homogenous gene pool, which improves the likelihood that researchers will find the genetic mutations associated with a disease. However, population-based genetic studies can lead to stigmatization. Specific groups of people may become identified with certain diseases, even if these diseases do not affect them disproportionately.

     There is also public concern that access to genetic information by others, such as insurers and employers, will increase the potential for discrimination based on such information. Many people shy away from genetic testing because they fear that too many people have access to their information and that it can be used against them. Such fears may be justified: A 19921993 pilot study documented 206 instances of discrimination (loss of employment and insurance coverage or ineligibility for benefits) as a result of access to genetic information.47 The primary risks of genetic research are social and psychological rather than physical harm. Confidentiality concerns are a significant barrier to genetic research. According to a 1997 national survey conducted by the U.S. Department of Labor, 63 percent of people reported that they would not take genetic tests for diseases if insurers or employers could access the tests.48 One in three women invited to participate in a breast cancer study using genetic information refused because they feared discrimination or loss of privacy.49 More recently, a CNN-Time magazine poll found that 46 percent of the respondents expect harmful results from the Human Genome Project. Only about 20 percent said the genetic information should be available to insurance companies, and only 14 percent said it should be available to the government.50 While a number of states have passed

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laws to provide greater confidentiality protections and to prohibit genetic discrimination to encourage more people to seek genetic testing and counseling, protections are still piecemeal.

G. Identifying Research

Needless to say, research is only subject to IRB review if it is indeed research as defined in the federal regulations. It is not, however, always easy to determine which activities are regulated research and thus subject to IRB review.

     It is particularly hard to distinguish between health services research and health care operations and quality assurance activities, for example. Many aspects of health services research are similar to quality assurance and improvement activities. Research is defined in the Common Rule as a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.51 While quality improvement activities at an institution are intended to affect the population of participants, the data may or may not be generalizable to others within and even outside the institution.52 Government Accounting Office (GAO) investigators found that several managed care organizations did not define records-based quality improvement activities as research, so these activities do not undergo IRB review, while some organizations do define these studies as research and thus submit them for IRB review.53 Alternatively, what begins as an internal review of quality of care may evolve into an activity that could be classified as health research. Even after an institution discovers that it may be engaging in research, however, it may choose to publish its results without seeking IRB review.54

IV. Public Concerns and Consequences of Violations of Privacy and Confidentiality

In general, research involving human subjects does not directly benefit the subject. Some health research can even pose potential harm to the subject physically and emotionally. Health research, however, can offer many societal benefits. To justify placing individuals at risk for the greater good, therefore, requires that research be conducted with respect for the rights and welfare of the individual subjects. Whether research involves collecting information or samples from individuals or getting access to medical records and databases, respect for the individual requires that researchers strive to protect the privacy of their research subjects by obtaining voluntary informed consent and ensuring that data are safeguarded against unauthorized access.

     A 1993 survey conducted by Louis Harris & Associates found that 64 percent of the public wanted to be asked their permission before medical records are used for research.55 Furthermore, a 1996 Louis Harris & Associates survey found that only 18 percent of the public considers the use of patient records for medical research without prior permission to be very acceptable. The publics comfort level increased if the information released did not identify individual patients, but one-third found it not at all acceptable for researchers to use health information without patient consent, even if their identities were kept confidential.56 The public is right to be apprehensive about invasions of privacy and lack of protections for their personal health data. While there are few widely publicized cases of violations of privacy and confidentiality in the research environment, in a recent GAO report, investigators noted that during a research presentation at a national meeting, notes on a patient suffering from extreme depression and suicidal impulses stemming from a history of childhood sexual abuse were distributed. The notes included the patients identity, medical history, mental status and diagnosis, as well as extensive intimate details about the patients experience.57 Because the study did not receive federal funding, there was no legal recourse for the research subjects. In a separate investigation, the former OPRR found that a university inadvertently released the names of study participants testing positive for HIV to parties outside the research project, including a local television station.58

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     Such breaches of confidentiality raise concerns not only about individuals being exposed or embarrassed, but also concerns that access to personal health data would allow others to use the information against the individuals to deny insurance, employment, and housing or to expose them to unwanted judgments and scrutiny. According to a California HealthCare Foundation survey, one in five U.S. adults believes that a health care provider, insurance plan, government agency, or employer has improperly disclosed personal medical information. Half of these people say it resulted in personal embarrassment or harm.59 Today, people engage in a variety of privacy-protective behaviors to protect themselves from what they consider harmful and intrusive uses of their health information. Privacy-protective behavior includes paying out of pocket for health care, seeing multiple providers, providing inaccurate or incomplete information, or avoiding care altogether. One in six adults in the United States engage in some form of privacy-protective behavior when seeking, receiving, or paying for health care.60 Engaging in such behavior not only puts the patient at risk, but affects the accuracy and integrity of health data for downstream users, such as individuals engaged in public health initiatives and health services research.61 Lack of privacy protections erodes public confidence and trust in the health care and research community, potentially resulting in the reluctance and unwillingness of individuals to participate in important research.

V. U.S. Regulation of Human Subjects Research

While there is not yet any comprehensive federal legislation that protects the confidentiality of health information, there is a patchwork of federal and state legislation, constitutional law, case law, and rules of civil procedure that provide limited protection. These laws address specific aspects of patient privacy and confidentiality of personal health data: 1) researcher access to data; 2) disclosure of data by the researcher; and 3) safeguards for research participants. Some of the laws provide substantial protections for the confidentiality of sensitive medical information, such as drug and alcohol abuse data, but without a comprehensive federal law protecting the confidentiality of all health information, most health information will continue to be subject to inconsistent legal standards and requirements.62

A. Common Rule

Currently, most research that receives federal funding is subject to the Common Rule. The Common Rule requires research institutions and federal agencies conducting research with human subjects, which includes the use of identifiable private information, to establish IRBs to review research proposals. The role of the IRB is to determine if the rights and welfare of the subjects will be safeguarded. While IRBs can help to ensure that a studys procedures observe sound research design and that there is adequate informed consent, they do not directly observe the research study or the process in which consent is obtained. IRBs periodically review previously approved research to determine whether the study should be allowed to continue.

     IRBs review the risks and benefits of the research and also make sure that adequate plans are made by the researcher to protect the privacy of subjects and maintain the confidentiality of the data. Among the criteria for IRB approval of research are requirements that 1) the risks to subjects are minimized; 2) the risks to subjects are reasonable; and 3) when appropriate, there are adequate provisions to protect the privacy of subjects and to maintain the confidentiality of the data. There is no further guidance in the Common Rule, however, for evaluating privacy and confidentiality issues when reviewing a research protocol.

     Although most federally funded health research involving human subjects generally requires IRB review, there are exceptions to full IRB review and consent requirements. Records-based research, for example, is often subject to an expedited review process.63 Under the Common Rule, research activities that involve only minimal risk or research involving materials that have been collected, or will be collected solely for nonresearch purposes may be eligible for expedited review, which is carried out by the IRB chair or one or more of the IRB members.64 The IRB member or members conducting expedited review must follow the same standard of

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review; however, the protocol may lack the evaluation that a full board review can offer. The level and adequacy of IRB review depend on the expertise and capabilities of the IRB members.

     In particular, it appears that records-based research that does not involve any direct contact with patients may be reviewed differently by IRBs. According to Elizabeth Andrews at Glaxo Wellcome, a fairly small proportion of research that is currently being reviewed by IRBs is [research for which there is no medical risk to the patient and relies purely on existing medical records] so IRBs typically have less experience reviewing this kind of research.65 The typical procedure is to automatically assume that research using existing records is minimal risk and allow the study to undergo expedited review.66 Furthermore, the current regulations were largely written for interventional research studies, such as clinical trials, so there is less guidance for research that uses personally identifiable data without physically involving the individual in the research.67 Under the Common Rule, some research may be exempt from IRB review. The Common Rule lists many kinds of research that are not subject to IRB review, such as research that only involves the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.68 However, what is identifiable or nonidentifiable is subject to interpretation. IRBs may find projects eligible for exemption because of how they interpret the definition of nonidentiable data, so they may come to different conclusions regarding subject consent for the same kinds of research. Not everyone grasps the distinction between identifiable and nonidentifiable data, so exemptions may be misapplied. According to Daniel Nelson, director of Human Research Studies at the University of North Carolina-Chapel Hill, some investigators and IRBs consider data stripped of the common identifiers, such as name, address, and Social Security number, as nonidentifiable and therefore not subject to IRB review.69 Professor Latanya Sweeney has often shown in her published work and presentations how difficult it is to produce nonidentifiable data in todays society. As she puts it, anonymity is in the eye of the beholder.70 Data that appear anonymous can be linked or matched to other databases (public or private) to re-identify individuals; a person can also look at unique characteristics in the fields and records of the database to identify individuals.71 DHHS-proposed health privacy regulations do not cover information that has been de-identified. To be considered de-identified under the proposed regulations, a covered entity must remove, code, or encrypt specified identifiers outlined in the proposed regulation and have no reason to believe that the information can be used by recipients to identify an individual. Some of the identifiers may be retained if the covered entity has appropriate statistical experience and expertise and determines that the probability of identifying the individuals with these identifiers is very low. The new definition of de-identified information may help researchers and IRBs better distinguish between identifiable and nonidentifiable information; however, some comments from the public on the proposed definition indicates that further clarification and guidance will be needed to ensure proper compliance with the regulations. The National Bioethics Advisory Commission (NBAC) report on human biological materials also provides a breakdown of unidentified, unlinked, coded, and identified samples, which may be helpful to IRBs considering these terms in research protocols.72 For human subjects research not exempt from review, informed consent of the research participants is required, unless an IRB waives the informed consent requirements, including the requirement to inform participants of the extent to which their information will be kept confidential. If an IRB finds that the research is not likely to cause harm to the subjects and the research could not otherwise be carried out without waiving consent, the IRB may waive consent.73 For example, an IRB may decide to waive informed consent for a project involving access to the medical records of 10,000 patients because it may consider the researchers access to these records minimal risk. Furthermore, the IRB may find that such research could not practicably be conducted if consent was required from all 10,000 patients. Consent waivers, however, raise concerns about adequate considerations for privacy and confidentiality.

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B. Health Insurance Portability and Accountability Act of 1996

Congress recognized the importance of medical privacy when it passed the Health Insurance Portability and Accountability Act of 1996 (HIPAA).74 In response to growing public pressure for a comprehensive federal health privacy law, Congress imposed a deadline on itself in HIPAA to enact a privacy law by August 21, 1999. Congress failure to meet that deadline triggered a requirement in HIPAA for the Secretary of DHHS to issue final health privacy regulations. The Secretary published proposed regulations on November 3, 1999, and the public comment period closed on February 17, 2000. The final regulations are expected by fall 2000, with a 24-month implementation period to follow before the law takes effect.

     The proposed regulation would directly cover only three entities: health care providers who transmit claims in electronic format; health insurers; and health care clearinghouses. As such, the regulation does not directly cover most researchers. Only researchers who provide care are considered providers and are thus subject to the regulations. The regulation will, however, have a large impact on researchers because it establishes rules for when a covered entity may disclose protected health information75 to researchers without the informed consent of the subject of the information. The regulation outlines specific criteria that must be met to disclose protected health information to a researcher without informed consent:

1.
  
The research protocol must be approved by a review committee: an IRB or privacy boardand
2.
  
The review committee must determine that the research meets certain criteria. The proposed regulations also include additional confidentiality criteria for IRBs and privacy boards beyond what is currently required under the Common Rule. If informed consent is waived, information can only be released to researchers if they meet the following criteria:

Common Rule provisions for the waiver of informed consent:

1.
  
The use or disclosure of protected health information involves no more than minimal risk to the subjects;
2.
  
The waiver will not adversely affect the rights and welfare of the subjects;
3.
  
The research could not practicably be conducted without the waiver;
4.
  
Whenever appropriate, the subjects will be provided with additional pertinent information after participation;
New criteria required by the proposed federal health privacy regulations:
1.
  
The research could not practicably be conducted without access to and use of the protected health information;
2.
  
The research is of sufficient importance so as to outweigh the intrusion of the privacy of the individual whose information is subject to the disclosure;
3.
  
There is an adequate plan to protect the identifiers from improper use and disclosure; and
4.
  
There is an adequate plan to destroy the identifiers at the earliest opportunity consistent with conduct of the research, unless there is a health or research justification for retaining the identifiers.

     If a researcher is also providing health care to the subjects of the research and processes claims electronically, then the researcher is considered a provider and must abide by additional rules outlined in the proposed regulations. These include:

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Research data that are unrelated to treatment may not be disclosed without specific voluntary patient authorization for purposes of treatment, payment, or health care operations. The proposed regulations, however, do not cover all researchers. For example, the regulation does not address use and disclosure of health data generated by researchers, if they are not based within a covered entity and do not provide health care.

     In effect, the proposed regulations would change research requirements in two significant ways: 1) extend application of the Common Rule provisions for waiver of informed consent by requiring all research involving individually identifiable electronic health information regardless of the source of funding to undergo some form of review (IRB or privacy board) and 2) add additional criteria for review of such research.

     It should be emphasized that the regulation will not apply to all researchers or all research. The proposed regulations do not cover researchers who generate their own data or who receive data from any entity not covered by the regulation. Much research conducted by pharmaceutical companies, for example, will not be covered by the regulations.

C. The Privacy Act

In 1974, concern about computerized data systems led to the passage of the Privacy Act,77 which covers all personally identifiable data held by the federal government. The Privacy Act limits the ability of federal agencies to disclose personally identifiable data. It also provides people the right to access and amend their records. The act, however, only applies to federal government agencies and their contractors. While it may prevent most nonconsensual access to government-held health records by insurers or the general public, the records are accessible to researchers and other federal and state agencies. The routine use exception in the act gives broad discretion to disclose information when compatible with the purpose for which the information was obtained. Over time, the volume of routine use exceptions has increased and government officials have interpreted the exception to allow disclosure that is compatible with any original purpose for which records were collected.78 For example, government officials have interpreted the routine use exemption to allow the computerized matching of separate agency records, even though a literal reading of the act does not appear to permit matching.79 On May 14, 1998, President Clinton issued a memorandum directing each federal agency to review its information practices to ensure compliance with the Privacy Act.80 As a result of this memorandum, in January 1999, the Office of Management and Budget (OMB) issued guidance stating that agencies can protect privacy by limiting the amount of data they maintain about individuals and ensuring that such data are relevant and necessary to accomplish an agency purpose, which would include research purposes. The OMB instructs the agencies to 1) designate a Senior Official for Privacy Policy; 2) review and improve the management of Privacy Act systems of records; 3) ensure notices describing systems of records are up-to-date, accurate, and complete; 4) identify any unpublished systems of records; and 5) review information sharing practices with state, local, and tribal governments.

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D. Other Federal Laws

At the federal level, there are strict laws limiting access to data about individuals with certain sensitive conditions. However, these laws apply only to specific types of data collected and maintained by particular entities.

     The Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act amended the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 to make records of the identity, diagnosis, prognosis, or treatment of substance abuse patients confidential and require express authorization for disclosure.81 The Controlled Substances Act allows the Attorney General to authorize persons engaged in drug abuse research to withhold the names and other identifying characteristics of research subjects. Researchers with this authorization cannot be compelled in any federal, state, or local civil, criminal, administrative, legislative, or other proceeding to identify the research subjects for which the authorization was obtained.82 The Public Health Service Act also prohibits personally identifiable information from research, demonstration projects, and evaluation conducted or supported by the Agency for Health Care Policy and Research (now known as the Agency for Healthcare Research and Quality) from use, publication, or release for any purpose other than the purpose for which it was supplied.83 Under the Public Health Service Act § 301(d), the Secretary of DHHS may authorize persons engaged in biomedical, behavioral, clinical, or other research to protect the privacy of research subjects by withholding the subjects names or other identifying characteristics from persons not connected with the research in any federal, state, or local civil, criminal, administrative, legislative, or other proceedings. Persons so authorized would receive a Certificate of Confidentiality.84 Individually identifiable information obtained in the course of activities supported or undertaken by the Agency for Healthcare Research and Quality or the National Center for Health Statistics (NCHS), Centers for Disease Control and Prevention (CDC), cannot be used for any purpose other than the purpose for which it was obtained, unless the establishment or person providing the information gives consent for its use. Furthermore, individually identifiable information obtained in the course of health statistical or epidemiological activities may not be published or released if the person or establishment providing the information has not given consent.85 Data collected by NCHS may be used only for the purpose of health statistical reporting and analysis. The Director of CDC can issue an Assurance of Confidentiality, which protects both individuals and institutions from court-ordered release of identifiable information. This assurance is used for studies conducted by CDC staff and/or contractors.86 In addition, under the Justice System Improvement provisions, no officer or employee of the federal government or any recipient of assistance under Title 42, which covers various public health and welfare programs such as the Public Health Service, Family Violence Prevention Services, Civil Rights, and the National Space Program, can use or reveal individually identifiable research or statistical information provided by any person under title 42 for any purpose other than the purpose for which the information was obtained.87 The Department of Education (DOE) also offers additional safeguards for children under the Protection of Pupil Rights Amendment.88 No student will be required to submit to a DOE-funded survey, analysis, or evaluation that reveals information concerning the students attitudes, beliefs, or habits in seven areasincluding mental and psychological problems potentially embarrassing to the student or family, sexual behavior and attitudes, and legally recognized privileged or analogous relationships, such as those with lawyers, physicians, and ministerswithout the prior consent of the student (if the student is an adult or emancipated minor) or the parent.

     While the above mentioned laws attempt to provide some protection for personally identifiable health data, a recent provision in OMBs appropriation for FY1999 provides public access under some circumstances to research data through the Freedom of Information Act (FOIA). The provision directed OMB to amend its Circular A-110 to require federal awarding agencies to ensure that all data produced under an award be made available to the public through the procedures established under FOIA.89 Circular A-110 applies only to grants,

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not to contracts and to data produced with federal support that are cited publicly and officially by a federal agency in support of an action that has the force and effect of law. It covers data collected by institutions of higher education, hospitals, and nonprofit institutions receiving grants from federal agencies, but not data collected by commercial organizations or most data collected by state and local governments.90 The new law was widely criticized by the scientific community, and OMB tried to narrow the scope of the law by applying it only to published research and to research that is used as a basis for making federal policy or rules. OMB has defined research data as the recorded factual material commonly accepted in the scientific community as necessary to validate research findings, but the research community still has concerns about what data would fall under this definition.

     Finally, under the Financial Services Modernization Act (more commonly referred to as Gramm-Leach-Bliley),91 banks can share with their affiliates (which include insurers and others) a consumers personal data, including health data, without the consumers knowledge or consent. For example, if a researcher pays a subject with a check and the check has information on it that is suggestive of the subjects health status or participation in a study, the bank that cashes that check could presumably pass the information along to its affiliates. The law also allows the sharing of this information with others not affiliated with the bank if the bank or insurer gives the consumer notice that it intends to share the information and the opportunity to opt out of the disclosure.

     In cases where insurance companies may cover treatment administered in the course of a clinical trial, the health insurer would be covered by the HIPAA regulations governing individually identifiable health information. While Gramm-Leach-Bliley itself is silent on whether or not it supersedes or limits the provisions of HIPAA, the regulations promulgated by the Department of the Treasury (Office of the Comptroller of the Currency and Office of Thrift Supervision),92 Federal Reserve System,93 Federal Trade Commission,94 Federal Deposit Insurance Corporation,95 Securities and Exchange Commission,96 and the National Credit Union Administration97 specifically state in their final regulations on the Privacy of Consumer Financial Information that they do not modify, limit, or supersede the HIPAA standards.

E. Case Law

Information privacy is not constitutionally protected as a fundamental right. While there is some judicial protection of privacy interests, application of federal or state law is often limited to specific factual situations. Most federal and state courts have recognized a right to informational privacy; however, the scope of privacy protection varies. Furthermore, courts often balance an individuals privacy interest against the compelling interests of the state or other individuals, and few cases, if any, adequately explain how such interests should be weighted.98 The lack of uniform protection through the judicial system leaves individuals vulnerable to potential intrusions on their privacy.

     In Griswold v. Connecticut, the Supreme Court found that the First, Third, Fourth, Fifth, and Ninth Amendments have penumbras, formed by emanations from those guarantees that help give them life and substance and create zones of privacy. While the Griswold Court limited the zones of privacy to the marriage relationship when it overturned state law that prohibited the use or dissemination of contraceptives, it did recognize that a constitutional interest in privacy exists.

     Over a decade later, in Whalen v. Roe, the Supreme Court examined whether there was a right to privacy with regard to the collection, storage, and dissemination of information in government databanks. The Whalen Court upheld the requirement that names of individuals obtaining abusable prescription drugs be reported, but it observed that the right to collect and use such data for public purposes is typically accompanied by a concomitant statutory or regulatory duty to avoid unwarranted disclosures. The Court found that the safeguards implemented by the New York Health Department had sufficiently shown a proper concern with, and protection of, the individuals interest in privacy.

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     In United States v. Westinghouse Electric Corp., a Third Circuit court held that the invasion of privacy was justified when the director of the National Institute for Occupational Safety obtained a federal subpoena ordering an employer to disclose information from employee medical records. The court established a five-part test for determining whether the governments right to know justifies invasions of privacy. The test requires a balancing of the following factors:

1.
  
the type of health record and type of health information required;
2.
  
the potential for harm in any subsequent nonconsensual disclosure;
3.
  
the injury from disclosure to the relationship in which the record was generated;
4.
  
the adequacy of safeguards to prevent unauthorized disclosure; and
5.
  
the degree of need for access.99

F. Rules of Civil Procedure

In civil and criminal cases and when the government conducts an investigation, the courts have the authority to compel disclosure of relevant information, including scientific data and health information, by judicial subpoenas. In addition to Griswold and Whalen, the Federal Rules of Civil Procedure provide some level of protection against subpoenas or other court orders in federal courts. Section 26(a) of the Federal Rules limits discovery, but, generally, if a court finds that certain information is relevant to the requesting partys case, it will order disclosure of that information. If the information is of questionable importance or relevance, the court will examine the requesting partys need for the information before granting or denying a motion to quash the subpoena. For example, in one case, a plaintiff put her medical condition at issue by seeking damages for pain and suffering, so her gynecological records were held relevant to possible alternative causes of her medical problems and her claim of emotional distress.100 In a suit against Procter & Gamble to recover damages for toxic shock syndrome allegedly caused by a tampon manufactured by P & G, Farnsworth v. Procter & Gamble Co.,101 the court of appeals held that the CDCs interests in keeping confidential the names and addresses of its participants in research on toxic shock syndrome outweighed the discovery interests of Procter & Gamble. The Farnsworth court emphasized the compelling social interest in promoting research and the potential harm to the CDCs public health mission if the information were released.

     Even when research data are discoverable, Rule 45(c)(3)(B) of the Federal Rules of Civil Procedure allows the court to quash or modify a subpoena, if the subpoena 1) requires disclosure of a trade secret or other confidential research, development, or commercial information102 or 2) requires disclosure of a) an unrelated experts opinion or information that does not describe specific events or occurrences in dispute and b) information from an experts study which was not made at the request of any party to the lawsuit.103 For example, in Bluitt v. R.J. Reynolds Tobacco Co., the court upheld a U.S. Magistrate Judges order to quash a subpoena, based on Rule 45(c)(3)(B), for data and supporting documentation from the Louisiana State University Medical Center for research involving environmental tobacco smoke and cancer in women.104

G. Certificates of Confidentiality

Health researchers, federally and privately funded, can also apply for Certificates of Confidentiality, so they may not be compelled in any federal, state, or local civil, criminal, administrative, legislative, or other proceeding to identify [subjects of research].105 Certificates of Confidentiality were originally enacted in 1970 as part of the War on Drugs to allow studies of drug addiction and abuse. Because potential research subjects were involved in illegal activity, they needed to be assured that the information they shared with researchers would remain completely confidential. Of particular concern was disclosure to law enforcement. In 1988, biomedical

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or behavioral research information that an investigator deems to be sensitive was incorporated into the Public Health Service Act.

     The Public Health Service has the authority to issue Certificates of Confidentiality to researchers to protect the identities of the research participants; however, the research must be of a sensitive nature where the protection is judged necessary to achieve the research objective.106 The Certificates legally free the researcher from obligations to comply with a subpoena, court order, or mandatory reporting, but the researcher can still voluntarily disclose the information to other interested parties. The Certificate allows the holder to use it to resist compulsory disclosure. No court decisions challenging Certificates of Confidentiality have been found.

     It is important to recognize that the protections of the Certificate of Confidentiality are exclusively for identifiable research data and do not extend to clinical information or medical records. In addition, according to Olga Boikess from the National Institute of Mental Health at NIH, the Certificates are issued sparingly and are only intended to provide additional confidentiality protections.

     Certificates are issued on a project by project basis, and they are administered out of multiple agencies. Therefore, there may be inconsistent administrative guidance. According to Moira A. Keane, Director of the Research Subjects Protection Program IRB/IACUC at the University of Minnesota Health Center, it also can be very time-consuming, taking several months to get a Certificate of Confidentiality.107 Furthermore, even in cases where IRBs find a protocol that seems to fit all the requirements for a Certificate, applications for Certificates have been denied. For example, the IRB at UNC asked some researchers to apply for a Certificate of Confidentiality for a project on illegal activity, HIV, and drug use, but the application was rejected.108 Authorizations of confidentiality are also available for research requiring an Investigational New Drug exemption under section 505(i) of the Federal Food, Drug, and Cosmetic Act109 or to approved new drugs that require long-term studies, records, and reports. For research directly related to law enforcement activities concerning drugs or other substances that may be subject to control under the Controlled Substances Act, the Attorney General has the authority to issue grants of confidentiality.110

H. State Law

For privately funded research that does not involve approval of an FDA-regulated product, the researcher need only comply with state law. There is little uniformity in how state statutes regulate researcher access to peoples health information. Virtually every state has some law aimed at the confidentiality of patient health information in the health care environment, but very few states have anything approaching a comprehensive health privacy law, and so the requirements for researchers are scattered or nonexistent.111 Most state health privacy laws were never intended to be comprehensive.112 They were enacted at different points in time, over many years, to address a wide variety of uses and public health concerns. The statutes are generally entity specific or condition specific because they are often crafted to speak to the unique needs of the patient population and the information needs of particular entities in the state. Many states, for example, have privacy laws governing hospitals and clinics, but not health plans and HMOs. Finally, many of the heightened privacy protections at the state level also were enacted hand-in-hand with mandatory reporting laws.113 Many states require patient authorization prior to disclosure. Researcher access, however, is almost always built-in as an exception to these statutes. The vast majority of laws, therefore, allow researchers broad access to patient records. Minnesota, for example, however, is an exception. For records generated after January 1, 1997, the health care provider must first advise the patient in writing that his records may be released to researchers. If the patient objects, the records may not be released, but they still may be used by researchers within the entity holding the data.114 Some states place restrictions on researcher access by requiring IRB approval, patient authorization, or justification of the need for the individually identifiable information. There also may be specific requirements for

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information such as HIV/AIDS or genetic information. While researchers are generally given broad access to patient data, some states place limits on researchers once they obtain the data. For example, in Michigan, information, records of interviews, written reports, or records that came in the possession of the department of health through a medical research project may not be admissible as evidence in a legal proceeding against an individual.115 In South Dakota, information may be released for the purpose of research into the causes and treatment of alcohol and drug abuse, but the researchers are prohibited from publishing the data in such a manner that identifies individuals.116 Researcher access to patient data held by state government entities is also often subject to different rules.117 (For a more comprehensive review of the role of states in the oversight of human subjects research, see, in this volume, the commissioned paper by Jack Schwartz from the Office of the Maryland Attorney General entitled Oversight of Human Subjects Research: The Role of the States.)

VI. International Principles for Ethical Research

Historically, privacy and confidentiality in research received little attention until the early twentieth century. The first set of principles for protection of human subjects was codified in 1946 as part of the verdict of the Nuremberg War Crime Trials after World War II. In 1964, the World Medical Association adopted the Declaration of Helsinki, which includes among its principles the following: Every precaution should be taken to respect the privacy of the subject and Concern for the interests of the subject must prevail over the interests of science and society. More recently, the European Union (EU) passed a Data Protection Directive that took effect in October 1998.118 The World Medical Association also announced that it will draft international guidelines on the use of centralized health databases to address issues of informed consent, privacy, confidentiality, individual access, and accountability.119 The EU Directive protects the privacy rights of its citizens, setting conditions on the international transfer of personal information from the EU to nonmember countries, such as the United States. The Directive prohibits the transfer of data to any country that fails to ensure an adequate level of protection. Such a prohibition can potentially impede the flow of personal health data from the EU to the United States, since the United States lacks a comprehensive health privacy law or nationally enforceable regulations or policies.

     In an attempt to avoid punitive measures, the United States has been negotiating a safe harbor agreement with the EU this past year, which would make U.S. businesses responsible for safeguarding the confidentiality of personal data they collect or receive about European consumers. EU members have approved the U.S. proposal in principle; however, the European Parliament rejected the proposal on July 5, 2000, saying key provisions needed to be renegotiated to strengthen data privacy and protection rights.120 Nevertheless, the Internal Market Commissioner, Frits Bolkestein, is expected to recommend that the European Commission approve the agreementa recommendation that likely will be accepted by the Commission.121

VII. Enforcement of Common Rule and Institutional Policies and Practices

There are an estimated 3,000 to 5,000 IRBs in the United States associated with a hospital, university, or other research organization. IRBs also exist in managed care organizations, government agencies, and as independent entities that review protocols for a fee. There is no accurate count, since IRBs are not required to register with any entity. Each of the 17 federal Common Rule agencies has independent responsibility for oversight of IRBs reviewing the research that it supports.122 Some researchers or research facilities conducting research that falls outside the scope of the Common Rule or FDA regulations use external research ethics or advisory boards. There are no data on the number of such review boards in the United States. At a July 1999 House Commerce Committee hearing, Greg Koski, the recently appointed director of the Office for Human Research Protections

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(OHRP), stated that only about 1,200 of the 5,000 or so IRBs that currently review research in the United States come under the Common Rule.123

A. Office for Protection from Research Risks/Office for Human Research Protections

Within DHHS, until recently, OPRR oversaw implementation of the Common Rule in all DHHS facilities and any institutions or sites receiving DHHS funds to conduct research involving human subjects. OPRR required these facilities and institutions to submit an assurance of compliance, a policy statement that sets forth the procedures they will use to protect human subjects. The assurance is a formal commitment to implement 1) widely held ethical principles; 2) 45 CFR 46 (the Common Rule and additional protections pertaining to research involving children, prisoners, fetuses, pregnant women, and human in vitro fertilization); and 3) institutional procedures adequate to safeguard the rights and welfare of human subjects. If a problem arises, OPRR uses the assurance to gauge an institutions compliance with human subject protections.124 The former OPRR investigated allegations of noncompliance and had the authority to restrict an institutions authority to conduct DHHS-funded human subjects research if there were a breach of confidentiality. OPRR handled most inquiries and investigations by telephone and correspondence. OPRR sometimes restricts further research until the researcher takes corrective action. For example, in one investigation, OPRR found that a university inadvertently released the names of study participants testing positive for HIV to parties outside the research project, including a local television station.125 The OPRR worked with the university to evaluate the extent of the breach of confidentiality. The university revised its internal systems to prevent a similar violation from occurring in the future.

     In June 2000, the new Office for Human Research Protections in DHHS officially replaced OPRR. In 1999, the Advisory Committee to the Director of NIH had recommended that the role of OPRR be expanded and that the office be elevated in stature and effectiveness. There was growing recognition of the need for enhanced federal oversight of human clinical studies. As such, OHRP was established in the Office of the Secretary at DHHS with the responsibility for ensuring the safety and welfare of research participants in DHHS-sponsored research. An independent National Human Research Protection Advisory Committee has also been established to provide scientific and ethical guidance to OHRP in its oversight role.

     In its regulatory role, OHRP monitors and evaluates an institutions compliance with the rules governing human subjects research. OHRP has the authority to investigate complaints and require corrective action or suspend research at an institution until the problem is resolved. For example, OHRP recently shut down all government-funded human medical experiments at the University of Oklahoma Health Sciences Center in Tulsa because the researchers broke multiple rules designed to protect subjects and then tried to cover up their lapses by withholding information from the universitys IRB and subjects.126 In its educational role, OHRP provides guidance to IRBs, scientists, and research administrators on ethical issues related to medical or behavioral research involving human subjects. The office conducts national educational workshops and on-site technical assistance to institutions conducting DHHS-sponsored research.127 The former OPRR Institutional Review Board Guidebook provides some guidance for addressing privacy and confidentiality. The guidebook provides points IRBs should consider in reviewing research protocols.128 The OPRR does note, however, that even research in which there are privacy concerns, these concerns may not come to the attention of an IRB. For example, under the federal regulations, IRBs do not have to review proposed research involving observation unless someone, such as the investigator or department head, determines that it falls in the category of research requiring IRB review.

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B. The Food and Drug Administration

The FDA also monitors and enforces human subject protections. The agency requires a promise from researchers that they will abide by FDA requirements for conducting drug, medical devices, and biologics research and conducts on-site inspections of IRBs that oversee such research. If there are serious violations, FDA may terminate the IRBs authority to approve new studies or recruit new participants for ongoing studies until FDA is assured of corrective action. Both OHRP and FDA have oversight responsibilities for research involving an FDA-regulated product supported by DHHS.

     However, a review of FDAs inspection process for clinical investigators conducted by the DHHS Office of Inspector General shows that FDAs main focus is procedural compliance with FDA regulations affecting IRBs rather than the content of IRB reviews. Furthermore, while its objectives for inspections are ensuring the quality and integrity of data and information submitted to FDA as well as the protection of human research subjects, the FDA has focused mainly on ensuring the integrity of the data submitted to the agency.129 The FDA monitors human subjects protection by conducting on-site inspections of the IRBs that oversee drug research. Its inspections have demonstrated that compliance with federal oversight rules are uneven. To enforce its regulations, the FDA uses four types of actions: 1) obtain a promise from the researcher to abide by FDA requirements; 2) impose restrictions on researcher use of investigational drugs; 3) disqualify researcher from use of investigational drugs; and 4) criminally prosecute the researcher.130

C. Research Institutions and IRBs

At the institution level, the institutions conducting or supporting the research are responsible for ensuring that the Common Rule requirements are met and for addressing violations of privacy and confidentiality. The IRBs and investigators are responsible for implementation of and compliance with the Common Rule. The IRB assists researchers in identifying possible threats to privacy and confidentiality. According to the 1999 GAO report on medical records privacy, IRBs rely on their organizations policies for determining the appropriate actions for protecting the confidentiality of personally identifiable health data used in the projects at the organization. However, according to Moira Keane at the University of Minnesota Health Center, while IRB members have an appreciation of the need for privacy and confidentiality, unless members themselves are actively involved in research, the level of expertise of IRBs to adequately identify and address privacy and confidentiality varies.131 In addition, IRB and institutional oversight is generally limited to review of progress reports, such as a review of outcomes, implementation of research design, and adverse physical effects. The IRB does not audit the researchers to ensure compliance. A GAO report found that while reasonable safeguards may be in place in these companies [organizations surveyed by GAO], external oversight of their research is limited, and even in those cases where IRBs are involved, they are not required to give substantial attention to privacy protection.132 Even where there is subsequent and periodic review of the research approved by the IRB, privacy and confidentiality issues may be ignored once a project has been approved. The frequency of review may also depend on the level of risk the study poses to the subjects, but the focus is on physical or psychological risk, not threats to privacy and confidentiality.133 There is an expectation that the investigators will put in place the necessary privacy and confidentiality protections as specified in their research protocol. The principal investigators are ultimately responsible for ensuring that adequate safeguards are in place to protect privacy and confidentiality. As such, they may not follow all of the IRBs instructions. For example, researchers may retain identifying fields as a matter of convenience or when there is no need for that information, even after an IRB has informed the researchers that retaining the identifiers may pose a confidentiality threat that can easily be eliminated without jeopardizing the study.134

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D. Research Outside the Scope of the Common Rule and FDA Regulations

For research not subject to the Common Rule or FDA regulations, there are few data about criteria for addressing privacy and confidentiality. Some organizations choose only to apply the federal rules when they are required. They may also rely on their collaborating universities or institutions for informed consent procedures and IRB review.

     HCFA imposes additional requirements on researchers who are not funded by a DHHS agency and want access to HCFA databases. The agency conducts a review to determine whether disclosure would be permitted under the Privacy Act and determines if the purpose of the research 1) requires identifiable data; 2) is of sufficient importance to warrant risk to the individual; and 3) is likely to be accomplished because the project is soundly designed and properly financed.

     However, HCFA does not routinely monitor these researchers to prevent unauthorized disclosures or uses and to provide corrective action for violations of the agreement.135 The agency does not have a system for monitoring whether organizations outside of HCFA have established safeguards for personal health information received from the agency. Instead, HCFA relies on each organization to monitor its own compliance with the data use agreements.

     A February 1999 GAO report shows that most of the organizations the agency surveyed have steps to limit access to personal health data, such as security safeguards to limit internal and external access to paper records and electronic databases.136 The agency, however, found that 2 of the 12 organizations contacted lacked written confidentiality policies restricting employee use and access to health information.137 Furthermore, while there may be some sanctions in place, there is little information on how violations are addressed. In addition, there are no guarantees that the institutions own penalties will be imposed for violations of privacy or confidentiality. Without remedies or sanctions, the current framework of enforcement will be lacking.

E. Impact of Federal Health Privacy Regulations

Once the federal health privacy regulations are finalized, penalties may be imposed on researchers who are also health care providers and transmit or maintain health information in electronic form, if they wrongfully obtain or disclose individually identifiable health information. Penalties include fines and/or imprisonment. There are also penalties for noncompliance with the regulations. However, there is no individual right to sue, so if an individual finds that his or her rights under HIPAA have been violated, all he or she can do is file a complaint with DHHS.

VIII. Evaluation of the Current System of Research Review

There has been recent and growing concern about the adequacy of the current system of IRB review and oversight, particularly as it relates to the confidentiality of personal health information. A report commissioned by DHHS Secretary Donna E. Shalala concluded, It is less clear that IRBs have been attending as vigorously to privacy risks as they have to physical and emotional risks.138 Recent studies conducted by the Office of the Inspector General at DHHS and NIH have found that IRBs review too many studies too quickly and with insufficient expertise.139 There is little training for researchers and IRB members and minimal oversight of approved studies.140 The level of expertise across IRBs varies. For example, according to the DHHS Inspector General report, in June 2000, 25 percent of the IRB survey respondents did not even ask researchers to explain their recruitment practices in the application for review.141 Most studies on human subjects research and protection focus on specific topics, such as informed consent issues and injuries to subjects. There are smaller data gathering efforts, such as the GAO report on Medical Records Privacy142 and the IOM Workshop on data privacy in health services research,143 which provide a glimpse into the current system of review for research protocols.

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     Experts in the research community comment that the current IRB system works well with respect to most interventional protocols but not necessarily for observational research, that is, research involving only existing medical data. Among the weaknesses of the existing system:

     There is also concern that the extension of the federal regulations to privately funded research under the proposed federal health privacy regulations will place further burdens on the IRB system.147

A. NIH Study on IRBs

In 1995, NIH conducted an evaluation of the implementation of the human subjects protection program, surveying IRB members and chairs from institutions that operated with MPAs.148 The main conclusion of this study was that IRBs are providing an adequate level of protection at a reasonable cost. However, there were only limited references to privacy and confidentiality issues. The emphasis of the survey was on broader issues of IRB workload, IRB personnel and policy practices, and the adequacy of protections for the rights and welfare of research subjects.

B. IOM Study on Health Data Privacy

Little is known about IRB practices and how IRBs function, particularly in health services research, which is largely research using databases of health information. The IOM convened a committee to gather information on the current practices and principles followed by IRBs to safeguard confidentiality of identifiable health data used for federally and privately supported health services research purposes. On August 14, 2000, the IOM released its recommendations regarding best practices for IRB review of health services research subject to federal regulations and IRB or other review board review of research outside the scope of federal regulations. Highlights of the IOM recommendations include the following:

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C. GAO Report on Medical Records Privacy

In 1999 a GAO report on medical records privacy identified research that is and is not subject to federal oversight and examined how IRBs ensure the confidentiality of health data used in research. While the basis of its findings was limited to the information provided by federal agencies and organizations interviewed, the GAO concluded that external oversight of privately funded research is limited. Not all research is subject to outside review, and even when IRBs are involved, they are not required to give substantial attention to privacy protection.149 In addition, the agency found that privacy protection is not a major thrust of the Common Rule and IRBs tend to give it less attention than other research risks because they have the flexibility to decide when it is appropriate to focus on privacy protection issues for review.150 There are even fewer data on the research review policies and practices regarding privacy and confidentiality in institutions conducting privately supported research. GAO found that some of the organizations the agency contacted conform to the FDA regulations because the organizations conduct both FDA regulated and privately funded research. Some organizations have adopted internal policies that require all studies that meet their definition of research to follow the Common Rule requirements. However, not all organizations necessarily define the same type of activity as research. Hence, application of the Common Rule varies within and across organizations.151 The GAO also found that in some organizations no research receives IRB review. One pharmacy benefits manager used external advisory boards rather than IRBs to review research proposals.152

IX. Recommendations

Currently, there are only federal requirements for federally funded human subjects research or research involving an FDA-regulated product, leaving a significant amount of research outside the scope of federal regulation. NBAC itself has stated in its preliminary findings on the adequacy of federal protections for human subjects research that the absence of federal jurisdiction over much privately funded research means that the U.S. government cannot know how many Americans currently are subjects in experiments, cannot influence how they have been recruited, cannot ensure that research subjects know and understand the risks they are undertaking, and cannot ascertain whether they have been harmed.153 At the same time, the public has demonstrated a concern about the lack of protections for their sensitive personal health data, withholding information or providing incomplete information to prevent intrusive uses of their information and to avoid discrimination, stigma, or embarrassment. Ultimately, such actions not only hurt individuals, but also compromise important research initiatives. Public trust in the research community is the key to ensuring continued access to personally identifiable health data for health research.

     To ensure adequate protections for research participants privacy and health data confidentiality and to improve implementation of existing federal requirements for human subjects research, we offer the following recommendations. We hope that NBAC will consider these recommendations in its review and evaluation of the current system of review for human subjects research.

Uniform Standards and Process

1. All research should undergo IRB review.

Today, research is subject to any number of review proceduresor subject to no review at alldepending on a fairly arbitrary set of circumstances, such as funding or the site of the research. Even recent attempts to create greater uniformity have fallen short. For example, the intent of the HIPAA regulations is to establish uniform rules and process for research regarding privacy and confidentiality issues regardless of the source of funding. However, the proposed regulations would allow the creation of privacy boards, which would only address the confidentiality concerns of a research project. Much of privately funded research will continue to be less

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accountable if it is subject only to privacy board review. The benefits of the IRB system are not reflected in privacy boards. In the proposed regulations, privacy boards exist only to grant a waiver for patient authorization, whereas IRBs review every step of a research project. All health research involving human subjects should receive comprehensive review.

     Establishing a truly uniform system of review would ensure oversight and accountability of all research. As Dr. Greg Koski, the recently appointed first director of OHRP, testified on July 15, 1999, before the Subcommittee on Health and Environment of the U.S. House Committee on Commerce, having a separate process that causes segregation in the whole process for review and approval of research would not only undermine the process that is there, it would tend to dilute the process for protection of human subjects.154 The most effective way to achieve uniformity is to subject all research to IRB review. Critics of this suggestion have argued that subjecting more research to IRB review will overburden a system that is already beyond capacity. Those concerns, however, can and should be addressed separately. In fact, adequate reform of the system can only take place when there is a single uniform system.

2.
  
Uniform and objective standards should be established for all health research, regardless of the source of funding.

Research projects should be held to the same standards to ensure equity, fairness, and accountability to bolster public trust and confidence in research.155 On June 8, 2000, Representative Diana DeGette introduced H.R. 4605, the Human Research Subject Protection Act of 2000, which would extend the Common Rule to human subjects participating in private sector research.

     In the absence of a uniform review systemsuch as an IRBall research should be held to the same standard. Therefore, private IRBs, internal review systems, or even newly created privacy boards should all be following the same set of rules and standards. In particular, there should be uniformity in decisions about when and under what circumstances a waiver of informed consent can be granted.

     The privacy and confidentiality standards established for federally funded research should be the standard for all research. As these standards are revised, they should be incorporated into the policies of the bodies reviewing research proposals.

Oversight and Accountability

3. All IRBs should register with a federal agency.

Today, it is impossible to determine how many IRBs are in existence, so it is impossible to even accurately study IRBs, let alone ensure compliance with federal standards. Registration is a basic easy step to allow for greater oversight of IRBs.

     Registration could be coordinated through the OHRP or with an office in each of the federal departments that provides funding for health research. According to Daniel Nelson, Director of Human Research Studies at the University of North Carolina-Chapel Hill, there is currently a national effort to require certification and accreditation of all institutions conducting research.156

4.
  
There should be periodic review after a research project has been approved that includes continued consideration of privacy and confidentiality issues.

Several recent reports have identified problems in the current IRB system, which could impact an IRBs ability to address human subjects concerns, including privacy and confidentiality. Not only have these reports found that IRBs are understaffed and overburdened, but also there is little oversight once a project has received IRB approval. A DHHS Inspector General report found that continuing review has become a low priority at many IRBs.157 Review is largely paper based, and IRBs often rely on the investigators to provide timely and accurate reports.158 The system of review is generally based on trust and confidence that once a protocol is approved, the

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investigators will implement appropriate privacy and confidentiality safeguards as specified in the protocol.159 Furthermore, the focus of subsequent review tends to be physical and psychological harm to the subjects.160 Continued periodic review, which includes an examination of privacy and confidentiality issues, would better ensure that IRBs and researchers address unanticipated privacy and confidentiality issues that may arise during the course of a study.

5.
  
Researchers should be required to sign confidentiality agreements that prohibit a) the use of personally identifiable health data for purposes other than for the original study and b) redisclosure of such data, without specific voluntary consent from the individual.

To maintain public trust and encourage individuals to participate in research, recipients of personally identifiable health data should be bound by the same requirements and obligations as the original data holder to protect the privacy of the subjects and the confidentiality of the data.

Training and Education

6. There should be more resources allocated to support and reform the IRB system.

DHHS Secretary Shalala announced on May 23, 2000, that DHHS will be undertaking an aggressive effort to improve education and training of clinical investigators, IRB members, and associated IRB and institutional staff on bioethics and human subjects research.161 However, there are other federal departments that engage in and sponsor health research, and they should also expand their educational efforts. Specifically, more education and training is required for researchers, IRBs, and institutions on 1) particular privacy and confidentiality issues arising from various types of health research and 2) the best policies and practices for safeguarding privacy and confidentiality More training and education of investigators and IRBs will be required as new opportunities for and types of health research arise, especially with the mapping of the human genome.162 Expanding the scope of IRB-reviewed research will also require more resources to ensure that adequate review is conducted.

Further Study and Guidance to IRBs and Researchers

The OHRP at DHHS and other federal departments all need to play a greater role in providing guidance and support to IRBs and researchers as they confront issues of privacy and confidentiality in their research. A recommendation for uniform and objective rules and standards would be meaningless without adequate guidance for investigators, IRBs, and research institutions to effectively implement these rules. Specifically:

7. A comprehensive privacy survey of all IRBs should be commissioned.

Today, there are few data on how IRBs function; how they currently identify and address privacy and confidentiality; and how research is reviewed (if at all) outside the IRB system. Furthermore, there is little information on how many IRBs exist and how many people are research subjects. A study on IRBs would provide data on the strengths and weaknesses of the current system with regards to the protection of privacy and confidentiality. A study can also help identify policies and best practices for safeguarding privacy and confidentiality that can be adopted by all IRBs and other review boards.

8. Model privacy and confidentiality policies and practices should be developed.

The IOM recently released a report with findings and recommendations, which include specific recommendations for ensuring health data privacy and confidentiality in health services research. Any entity collecting or receiving personal health data should do so under comprehensive policies.

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9. Specific guidance is needed on the distinction between identifiable and nonidentifiable data.

Generally, there is broad agreement that the use of anonymous data in noninterventional research should not require informed consent of the subjects of the data. It is becoming increasingly difficult, however, to differentiate between identifiable and nonidentifiable (or anonymous) data. Data exist on a continuum of identifiability. The increasing amount of publicly available data means that seemingly anonymous data can now be used to identify individuals.

     More guidance is needed for institutions, IRBs, and researchers to make determinations about whether data is truly anonymous. Such guidance should specifically comment on the amount, quality, and type of data that is publicly available. The guidance should also include commentary on the feasibility of using privacy-enhancing technologies in research, such as encryption.

10. Clearer definitions of health research are needed.

One of the major issues in health research is distinguishing activities that will require IRB review from activities that do not fall under the definition of research for purposes of federal regulation. Guidance to researchers, IRBs, and research institutions is needed on what activities must undergo IRB review, especially when an activity begins as quality assurance but evolves into health research.163

11. Additional guidance may be needed to clarify the new requirements specified in the HIPAA regulations.

New federal health privacy regulations are expected to be finalized by the fall of 2000. We have found that some IRBs and researchers are not aware of HIPAA and the impact that the new regulations will have on their research activities. Researchers, IRBs, and data holders will need guidance on implementation of the new rules and information about the possible penalties for noncompliance with the new regulations.

Enforcement

12.
  
Research institutions should establish strong enforceable remedies and sanctions for violations of privacy and confidentiality protections.

For rules and policies to be truly effective, strong, and enforceable sanctions need to be established for violations of privacy and confidentiality, inside and outside an institution. HIPAA penalties are limited in application, since they would apply only to researchers who fit the definition of a covered entity, such as researchers who are also health care providers who transmit or maintain health information in an electronic format.

Notes

1 William W. Lowrance, Privacy and Health Research: A Report to the U.S. Secretary of Health and Human Services 2129 (May 1997).

2 Data are discrete pieces of information. Health information, as used in this paper, is the knowledge obtained from investigation or study of health data.

3 Associated Press, Medical data up for grabs, Nov. 9, 1998.

4 Office of Inspector General, Department of Health and Human Services, Recruiting Human Subjects: Pressures in Industry-Sponsored Clinical Research 24, OEI-01-97-00195 (June 2000) [hereinafter Office of Inspector General, Recruiting Human Subjects].

5 Janlori Goldman, Protecting Privacy to Improve Public Health, 17 Health Affairs 47, 48 (Nov.Dec. 1998).

6 Ibid.

7 Health Privacy Project, Best Principles for Health Privacy: A Report of the Health Privacy Working Group 10 (July 1999), available at www.healthprivacy.org/resources/index.shtml.

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8 We broadly define health research to include basic research, clinical trials, epidemiological studies, and health services research. Health services research is a multidisciplinary field of inquiry, both basic and applied, that examines the use, costs, quality, accessibility, delivery, organization, financing, and outcomes of health care services to increase knowledge and understanding of the structure, processes, and effects of health services for individuals and populations (Committee on Health Services Research: Training and Work Force Issues, Institute of Medicine, Health Services Research: Work Force and Educational Issues, 1995).

9 Tom L. Beauchamp and James F. Childress, Principles of Biomedical Ethics 407 (4th ed., 1994).

10 Alan F. Westin, Privacy and Freedom 7 (1967).

11 Anita L. Allen, Coercing Privacy, 40 Wm and Mary L. Rev. 723, 723724 (1999).

12 Beauchamp and Childress, supra note 9, at 121.

13 Ibid., at 410.

14 Louis D. Brandeis and Samuel D. Warren, The Right to Privacy, 4 Harv. L. Rev. 193197 (1890).

15 Janlori Goldman, Privacy and Individual Empowerment in the Interactive Age, in Visions of Privacy: Policy Choices for the Digital Age 97115, 101 (Colin J. Bennett and Rebecca Grant, eds., University of Toronto Press 1999).

16 Alan F. Westin, Computers, Health Records, and Citizen Rights 6 (U.S. Government Printing Office, 1976).

17 Federal Policy for the Protection of Human Subjects, 56 Fed. Reg. 28002-28032 (1991); 45 CFR 46, subpt. A.

18 Department of Agriculture, Energy, Commerce, Health and Human Services, Housing and Urban Development, Justice, Defense, Education, Veterans Affairs and the Transportation; the National Aeronautics and Space Administration, The Social Security Administration; the Consumer Product Safety Commission; the Agency for International Development; the Environmental Protection Agency; the National Science Foundation; and the Central Intelligence Agency. The Common Rule provisions are codified in regulation by the individual agencies. The Food and Drug Administration issued its own regulations for research involving FDA-regulated products.

19 21 CFR Parts 50 and 56.

20 Medical Records Confidentiality in the Modern Delivery of Health Care: Hearing Before the Subcomm. on Health and

Environment of the House Comm. on Commerce, 106th Cong. 34 (1999) (Statement of Robert Amdur, Former Associate Professor of Medicine and Chairperson, Dartmouth Committee for the Protection of Human Subjects, Dartmouth Medical School).

21 Committee on the Role of Institutional Review Boards in Health Services Research Data Privacy Protection, Division of Health Services, Institute of Medicine, Institutional Review Boards and Health Services Research Data Privacy: A Workshop Summary 2 (National Academy Press, 2000) [hereinafter Workshop Summary].

22 Personally identifiable health data are data concerning a persons health or treatment that are or may readily be associated with an individual. Synonyms include individually identifiable health data and personal health data.

23 Committee on the Role of Institutional Review Boards in Health Services Research Data Privacy Protection, Division of Health Services, Institute of Medicine, Protecting Data Privacy in Health Services Research 45 (National Academy Press, 2000) [hereinafter Institute of Medicine, Protecting Data Privacy in Health Services Research].

24 Ibid.

25 Office of Inspector General, Recruiting Human Subjects, supra note 4, at 24.

26 Ibid. at 25.

27 In Indiana (Ind. Code § 16-38-2-5), Nebraska (Neb. Rev. Stat. § 81-666), and Ohio (Oh. Rev. Code § 3701.263), for example, a researcher may get access to individually identifiable data from the cancer registry if they meet certain conditions specified by the state health departments, such as providing to the department information about the purpose of the project, the nature of the data to be collected, the records the researcher wishes to review, and the safeguards the researcher will put in place to protect the identity of the patients. See also, Office of Inspector General, Recruiting Human Subjects, supra note 4, at 24.

28 Alliance for Health Reform and The Forum on Technology and Innovation, Policy Briefing: Medical and Genetic Privacy (Washington, D.C., July 14, 2000).

29 H.R. 2470 Medical Information Protection and Research Enhancement Act of 1999: Hearing Before the Subcomm. On Health and Environment of the House Comm. On Commerce, 106th Cong. (1999) [hereinafter House Hearing] (Statement of Carolin M. Frey, Chair, Institutional Research Review Board, Pennsylvania State Geisinger Medical Center).

30 Editorial, Whose Heart Data? The Boston Globe, June 21, 2000; Ronald Rosenberg and Liz Kowalczyk, Heart Study Will Sell Patient Data for Profit, The Boston Globe, June 16, 2000, at A1.

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31 George J. Annas, Rules for Research on Human Genetic VariationLessons from Iceland, 342 The New England Journal of Medicine (2000).

32 Ibid.

33 Workshop Summary, supra note 21, at 4.

34 William W. Lowrance, Privacy and Secondary Use of Data in Health Research, Proceedings of the Inaugural Robert H. Levi Leadership Symposium 13, 14 (April 2000).

35 Lowrance, Privacy and Health Research, supra note 1, at 19.

36 The criteria include the purpose of the research project 1) requires the use of identifiable data; 2) is of sufficient importance to warrant risk to the individual that additional exposure of the record might bring; and 3) is likely to be accomplished because the project is soundly designed and properly financed. U.S. General Accounting Office, Medicare: Improvements Needed to Enhance Protection of Confidential Health Information 39, GAO/HEHS-99-140 (July 20, 1999).

37 45 CFR Parts 160 and 162; The Health Insurance Portability and Accountability Act of 1996 (HIPAA) required the Secretary of DHHS to adopt national standards for electronic health care transactions. Today, health care providers and health plans that conduct business electronically use different formats for electronic transactions. The purpose of these standards is to improve the efficiency and effectiveness of the health care system. For more information, visit DHHS Administrative Simplification website http://aspe.hhs.gov/admnsimp/index.htm>.

38 Alliance for Health Reform and The Forum on Technology and Innovation, supra note 29; See also, Latanya Sweeney, Controlling Inference and Protecting Privacy by Constructing an Anonymous Data System, Carnegie Mellon University, unpublished paper, November 1998.

39 Latanya Sweeney, Weaving Technology and Policy Together to Maintain Confidentiality, 25 J.L. Med. and Ethics 98, 100 (1997).

40 Robert Mittman and Mary Cain, The Future of the Internet in Health Care 1 (January 1999), available on the web at http://ehealth.chcf.org/forecast4/index_show.cfm?doc_id=17.

41 Online Privacy: Researchers Use Internet Chat Rooms for Studies, California Healthline (May 1, 2000).

42 Jeffrey M. Cohen, Human Subjects Issues in Internet Research, 13 Health L. News 5 (2000).

43 A recent report sponsored by the California HealthCare Foundation profiled the policies and practices of 21 health-related web-sites and found that most of the privacy policies do not meet the minimum fair information practices, such as adequate notice and giving users some control over their information. Furthermore, the report shows inconsistencies between the privacy policies and the actual practices of the health websites. There were instances where personally identified data were transferred to third parties in direct violation of stated privacy policies. (Janlori Goldman et al., Report on the Privacy Policies and Practices of Health Web Sites [February 2000], available on the web at http://ehealth.chcf.org/priv_pol3/ index_show.cfm?doc_id=33).

44 Online Privacy: Researchers Use Internet Chat Rooms for Studies, supra note 41.

45 Ibid.

46 Associated Press, Scientists announce DNA mapping, June 26, 2000.

47 Lisa N. Geller et al., Individual, Family, and Societal Dimensions of Genetic Discrimination: A Case Study Analysis, 2 Science and Engineering Ethics 71 (1996).

48 U.S. Department of Labor, U.S. Department of Health and Human Services, Equal Employment Opportunity Commission, and U.S. Department of Justice, Genetic Information and the Workplace (Jan. 20, 1998), available at www.dol.gov/dol/_sec/public/media/reports/genetics.htm.

49 Ibid.

50 Reuters and The Associated Press, Genome announcement technological triumph: Milestone in genetics ushers in new era of discovery, responsibility (June 26, 2000), available at www.cnn.com/2000/HEALTH/06/26/ human.genome.04/ index.html.

51 45 CFR § 46.102(d).

52 David Casarett et al., Determining When Quality Improvement Initiatives Should Be Considered Research, 283 JAMA 2275, 2276 (2000).

53 U.S. General Accounting Office, Medical Records Privacy: Access Needed for Health Research, but Oversight of Privacy Protections Is Limited 1112, GAO/HEHS-99-55 (February 1999).

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54 Telephone interview with Daniel K. Nelson, Director, Human Research Studies, and Associate Professor of Social Medicine and Pediatrics, School of Medicine, University of North Carolina-Chapel Hill (July 14, 2000).

55 Louis Harris and Associates, Inc., Health Information Privacy Survey: A Survey of the Public and Leaders (1993).

56 Louis Harris and Associates, Inc., The 1996 Equifax-Harris Consumer Privacy Survey (1996).

57 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 17.

58 Ibid. at 16.

59 California HealthCare Foundation, National Survey: Confidentiality of Medical Records (January 1999), available on the Web at http://ehealth.chcf.org/cons_att2/index_show.cfm?doc_id=155>.

60 Ibid.

61 Goldman, Protecting Privacy to Improve Public Health, supra note 5, at 49.

62 Numerous federal reports in the past 20 years have recommended that comprehensive federal medial records confidentiality legislation be passed to protect patient privacy and the confidentiality of the health information. See National Research Council, For the Record: Protecting Electronic Health Information (1997); National Academy of Sciences, Institute of Medicine, Health Data in the Information Age: Use, Disclosure and Privacy (1994); Office of Technology Assessment, Protecting Privacy in Computerized Medical Information (1993); Advisory Committee on Automated Personal Data Systems, U.S. Department of Health, Education, and Welfare,

Records, Computers, and the Rights of Citizens (1973).

63 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 3.

64 45 FR § 46.110.

65 House Hearing, supra note 29 (Statement of Elizabeth Andrews, Director of Worldwide Epidemiology, Glaxo Wellcome).

66 Ibid.

67 Health Privacy Project, supra note 7, at 39.

68 Federal Policy for the Protection of Human Subjects, 56 Fed. Reg. 28003 (1991); 45 CFR § 46.101(b).

69 Telephone interview with Daniel K. Nelson, supra note 54.

70 Latanya Sweeney, supra note 39, at 100.

71 Ibid. at 98.

72 National Bioethics Advisory Commission, Executive Summary, Research Involving Human Biological Materials: Ethical Issues and Policy Guidance (August 1999).

73 45 CFR § 116(d).

74 42 USC §§ 1320d1320d-8.

75 Under the regulations, protected health information is information that relate to a persons physical or mental health, the provision of health care, or the payment of health care; identify, or could be used to identify, the person who is the subject of the information; be created by or received from a covered entity; and have been electronically maintained or transmitted by a covered entity at some point (Standards for Privacy of Individually Identifiable Health, 64 Fed. Reg. 59918, 60053 [1999]).

76 Exceptions are (1) inspection could be reasonably likely to endanger the life or physical safety of the patient or another person; 2) information identifies another individual and inspection is reasonably likely to cause substantial harm to that other individual; 3) disclosure is likely to reveal the source of information provided under a promise of confidentiality; 4) while the research study is in progress, and an IRB/privacy board has approved the denial of access and the participant has agreed to the denial when consenting to participation in the study; or 5) disclosure compiled for a legal proceeding (Standards for Privacy of Individually Identifiable Health, 64 Fed. Reg. at 6005960060).

77 5 USC § 552a.

78 Jerry Berman and Janlori Goldman, A Federal Right of Information Privacy: The Need for Reform 14 (Washington, DC: Benton Foundation 1989); See also William W. Lowrance, Privacy and Health Research, supra note 1, at 5960.

79 Berman and Janlori, supra note 78, at 15.

80 Memorandum from President William J. Clinton to the Heads of Executive Departments and Agencies, Privacy and Personal Information in Federal Records (May 14, 1998), available at www.pub.whitehouse.gov/uri-res/I2R?urn:pdi://oma.eop.gov.us/1998/5/14/8.text.1.

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81 42 USC § 290dd-2. 82 21 USC § 872. 83 42 USC § 299a-1(c). 84 42 USC § 241(d). 85 42 USC § 242m(d).

86 42 USC §§ 242k and 242m(d).

87 42 USC § 3789g.

88 20 USC § 1232h.

89 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277.

90 Many states have Public Records statutes that provide access to information compiled by agencies of the state government. Some researchers have expressed concern that these state statutes may be used by individuals or corporations opposed to certain research to get access to research data that may identify subjects, threatening the privacy of the subjects and the confidentiality of their data. For example, in 1998, a law firm subpoenaed an environment scientist conducting research on pollutants, requesting records of private conversations and the scientists personal finances under the states open-records statute and FOIA. The scientist was forced to comply because her lawyers could not find recourse under state or federal law (Daniel K. Nelson, Vision 2030 Task Force for Social and Ethical IssuesHealth and Biological Information).

91 Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 113 Stat. 1338.

92 12 CFR Part 40.

93 12 CFR Part 216. 94 16 CFR Part 313. 95 12 CFR Part 573. 96 17 CFR Part 248. 97 12 CFR Part 716.

98 Joni Gray et al., Ethical and Legal Issues in AIDS Research 137 (1995).

99 638 F.2d 570 (3d Cir. 1980).

100 Isaacson v. Keck, 875 F. Supp. 478 (N.D. Ill. 1994).

101 Farnsworth v. Procter & Gamble Co, 758 F.2d 1545 (11th Cir. 1985).

102 See e.g., United States Environmental Protection Agency v. General Electric Co., 197 F.3d 592 (2d Cir. 1999).

103 Fed. R. Civ. P. 45(c)(3)(B)(i) and (ii).

104 1994 U.S. Dist. LEXIS 16933 (1994).

105 42 USC § 241(d).

106 Office for Protection from Research Risks, Office of Extramural Research, National Institutes of Health, U.S. Department of Health and Human Services, Certificates of Confidentiality: Privacy Protection for Research Subjects, available at http://ohrp.osophs.dhhs.gov/humansubjects/guidance/certconpriv.htm (last updated June 23, 2000).

107 Telephone interview with Moira A. Keane, Director, Research Subjects Protection Program IRB/IACUC, University of Minnesota Health Center (August 1, 2000).

108 Telephone interview with Daniel K. Nelson, supra note 54.

109 21 USC § 355(i).

110 21 CFR § 1316.21.

111 Joy Pritts et al., The State of Health Privacy: An Uneven Terrain (A Comprehensive Survey of State Health Privacy Statutes) (August 1999), available at www.healthprivacy.org/resources/index.shtml.

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112 Hawaii and California are notable exceptions. Both states passed comprehensive health privacy laws in 1999. A few states are considering comprehensive health privacy legislation but are waiting for the release of the HIPAA regulations before passing any laws.

113 For example, HIV/AIDS statutes requiring physicians to report to the state health department the names and addresses of individuals suffering from HIV/AIDS also include restrictions on disclosure of such information to others. Such restrictions were passed in response to public fear that certain health information would be widely disclosed and used to deny benefits or cause other harm.

114 Minn. Stat. § 144.335(3a)(d). 115 Mich. Comp. Laws § 333.2632. 116 S.D. Codified Laws § 26-8-13. 117 Joy Pritts et al., supra note 111.

118 European Parliament and the Council of the European Union, Directive on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (95/46/EC), Official Journal of the European Communities No. L281, 31-50 (Nov. 23, 1995), available at www.privacy.org/ pi/intl_orgs/ec/final_EU_Data_Protection.html.

119 Kamran Abbassi, WMA to Produce Guidelines on Health Databases 320 BMJ 1295 (2000).

120 Associated Press, EU to Let U.S. Data Deal Stand, July 13, 2000.

121 Ibid.

122 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 5.

123 House Hearing, supra note 29 (Statement of Greg Koski, former Director, Human Research Affairs, Partners Health Care System).

124 Office for Protection from Research Risks, Office of Extramural Research, National Institutes of Health, U.S. Department of Health and Human Services, Protecting Human Research Subjects: Institutional Review Board Guidebook (1993) [hereinafter Institutional Review Board Guidebook]; 45 CFR § 46.103.

125 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 16.

126 Rick Weiss and Deborah Nelson, U.S. Halts Cancer Tests in Oklahoma, Wash. Post, July 11, 2000, at A1.

127 Information on the Office for Human Research Protections is available at http://ohrp.osophs.dhhs.gov.

128 1) Does the research involve observation or intrusion in situations where the subjects have a reasonable expectation of privacy? Would reasonable people be offended by such an intrusion? Can the research be redesigned to avoid the intrusion?

     2) If privacy is to be invaded, does the importance of the research objective justify the intrusion? What if anything, will the subject be told later?

     3) If the investigators want to review existing records to select subjects for further study, whose permission should be sought for access to those records? How should the subjects be approached?

     4) Will the investigator(s) be collecting sensitive information about individuals? If so, have they made adequate provisions for protecting the confidentiality of the data through coding, destruction of identifying information, limiting access to the data, or whatever methods that may be appropriate to the study? If the information obtained about subjects might interest law enforcement or other government agencies to the extent that they might demand personally identifiable information, can a grant of confidentiality be sought from a federal or state agency to protect the research data and the identity of the subjects from subpoena or other legal process?

     5) Are the investigators disclosures to subjects about confidentiality adequate? Should documentation of consent be waived in order to protect confidentiality? Institutional Review Board Guidebook, supra note 124, at 336 and 337.

129 Office of Inspector General, Recruiting Human Subjects, supra note 4, at 30.

130 U.S. General Accounting Office, Scientific Research: Continued Vigilance Critical to Protecting Human Subjects 56, GAO/T-HEHS-96-102 (March 12, 1996).

131 Telephone interview with Moira A. Keane, supra note 107.

132 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 21.

133 Telephone interview with Moira A. Keane, supra note 107.

134 Workshop Summary, supra note 21, at 19.

135 U.S. General Accounting Office, Medicare: Improvements Needed to Enhance Protection of Confidential Health Information, supra note 36, at 3.

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136 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 1718.

137 Ibid.

138 Lowrance, Privacy and Health Research, supra note 1, at 42.

139 Office of Inspector General, Department of Health and Human Services, Institutional Review Boards: A Time for Reform 56, OEI-01-97-00193 (June 1998); See also James Bell et al., Final Report: Evaluation of NIH Implementation of Section 491 of the Public Health Service Act, Mandating a Program of Protection for Research Subjects, Prepared for the Office of Extramural Research, National Institutes of Health 8386 (June 15, 1998).

140 Office of Inspector General, Institutional Review Boards: A Time for Reform, supra note 139, at 68.

141 Office of Inspector General, Recruiting Human Subjects, supra note 4, at 26.

142 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 122.

143 Institute of Medicine, Protecting Data Privacy in Health Services Research, supra note 23, at 1152.

144 House Hearing, supra note 29 (Statement of Carolin M. Frey, Chair, Institutional Research Review Board, Pennsylvania State Geisinger Medical Center).

145 Ibid.

146 Telephone interview with Daniel K. Nelson, supra note 54.

147 Health Privacy Project, supra note 7, at 37.

148 Bell et al., supra note 139, at 186.

149 U.S. General Accounting Office, Medical Records Privacy, supra note 53, at 21.

150 Ibid. at 13.

151 Ibid. at 10.

152 Ibid. at 12.

153 National Bioethics Advisory Commission, Summary of Preliminary Findings: Adequacy of Federal Protections for Human Subjects in Research, at bioethics.gov/finalmay3.pdf. (See Memorandum attached to Letter from Dr. Harold T. Shapiro, Chair of the National Bioethics Advisory Commission, to President William J. Clinton on the National Bioethics Advisory Commission Summary of Preliminary Findings: Adequacy of Federal Protections for Human Subjects in Research, May 4, 1999).

154 House Hearing, supra note 29 (Statement of Greg Koski, former Director, Human Research Affairs, Partners Health Care System).

155 Health Privacy Project, supra note 7, at 36.

156 Telephone interview with Daniel K. Nelson, supra note 54.

157 Office of Inspector General, Institutional Review Boards: A Time for Reform, supra note 139, at 6.

158 Ibid.

159 Telephone interview with Daniel K. Nelson, supra note 54.

160 Ibid.

161 U.S. Department of Health and Human Services, Fact Sheet, Protecting Research Subjects (May 23, 2000).

162 Telephone interview with Moira A. Keane, supra note 107.

163 In a recent article in the Journal of the American Medical Association, the authors suggest criteria to distinguish quality improvement activities from health research, proposing that an activity should be regulated as research if 1) the majority of participants involved are not expected to benefit directly from the knowledge to be gained or 2) additional risks or burdens are imposed to make the results generalizable. The authors acknowledge that such criteria may create greater burdens on health care institutions and IRBs by categorizing more initiatives as research but argue that it makes little sense to reject these criteria, if they are otherwise sound, simply because they would create additional burdens for institutions (Casarett et al., supra note 52, at 22762279).

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AN EXAMINATION OF ISSUES PRESENTED BY PROPOSALS TO UNIFY AND EXPAND FEDERAL OVERSIGHT OF HUMAN SUBJECT RESEARCH

Commissioned Paper C.K. Gunsalus

University of Illinois at Urbana-Champaign

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Executive Summary

The National Bioethics Advisory Commission (NBAC) seeks to determine whether to improve the federal regulatory system for the protection of human subjects, and if needed, in what ways. This paper was commissioned to examine whether NBAC should recommend unifying federal oversight of federal and private human subjects research under a single government office such as the Office for Protection from Research Risks (OPRR).

     The question posed by NBAC encompasses two related but distinct groups of issues: 1) those pertaining to unification of federal human subject protection oversight in a single agency or office and 2) those raised by expansion of the scope of federal oversight to cover not just federally funded, but also privately conducted human subjects research.

     NBAC seeks to protect all human subjects of research against abuse or exploitation. But to get to that goal, NBAC must grapple with several fundamental questions: should citizenship or residency in the United States ensure a minimum level of protection against the risks inherent in research involving human subjects? If so, how is that level of protection defined? Is it possible to provide that level of protection efficiently, cost-effectively, and without burdening research that presents little or no risk to human subjects?

     Our current system for protecting human subjects of research has many acknowledged strengths, and it balances effectively the competing interests always present in a regulatory system. It has served remarkably well for decades, and achieved many of the goals it was originally designed to meet. On the other hand, aspects of the system have known deficiencies that require correction and improvement. The recommendations in this paper are not designed to detract from the strengths of a good system, but to improve upon it in ways that will be beneficial without undue regulatory burden.

This paper recommends four elements for an improved regulatory system:

1.
  
Correcting structural/organizational deficiencies in the present regulatory system,
2.
  
Unifying federal oversight of human subject research in one federal office or agency, but leaving in place the current jurisdiction of FDA over the approval of drugs, medical devices, and biologics,
3.
  
Using existing federal offices as structural models for unified oversight of human subjects research, and
4.
  
Expanding the scope of regulation incrementally rather than globally. This recommendation envisions an expansion of federal jurisdiction only to identified categories of research that meet the criterion of presenting known risks to human subjects of research.

     Correcting Deficiencies. A series of studies over recent years, culminating in the June 1998 Department of Health and Human Services (DHHS) Office of the Inspector General (OIG) report on Institutional Review Boards (IRBs) and the NBAC-commissioned papers by Drs. John C. Fletcher and Charles R. McCarthy, have identified deficiencies in our present system for protecting human subjects. These must be corrected in tandem with any expansion of federal oversight. Of particular concern are the conflicts of interest inherent in OPRRs location within an agency for which it has a monitoring responsibility. Other key issues include the inadequate (and evidently declining) governmental resources allocated for the protection of human subjects; inconsistency of human subject protection across the government; and minimizing bureaucratic procedures in favor of educational efforts and true accountability.

     Unification of Oversight Responsibilities. Responsibility for oversight of federally conducted or sponsored research should be consolidated into one federal agency or office. Responsibility for drug, device, and biologic approvals should remain with FDA, but the two agencies should develop a memorandum of understanding to codify their cooperation and coordination. Information is presented on existing governmental agencies that might serve as models for a reorganized and strengthened human subject protection office.

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     Recommended Strategy for Expanding Regulatory Scope. This paper proposes adopting a strategy of including all research posing known risks to human subjects of research under federal jurisdiction regardless of the source of funding or nature of the organization conducting the research. This approach is sensitive to current societal concerns about unchecked governmental regulation and should fare well under cost/benefit analyses. If NBAC adopts this proposed strategy, further work will be necessary, first to devise a mechanism for defining known risks, and then to develop a procedure for bringing relevant categories of research under federal jurisdiction.

I. Introduction

NBAC unanimously adopted a resolution on May 17, 1997, that No person in the United States should be enrolled in research without the twin protections of informed consent by an authorized person and independent review of the risks and benefits of the research.1 This position was reinforced when President Clinton asserted in a commencement address that same month that [w]e must never allow our citizens to be unwitting guinea pigs in scientific experiments that put them at risk without their consent and full knowledge.2 While the NBAC resolution and presidential declaration seem to be straightforward expressions of fundamental American beliefs about human rights and dignity, translating them into practice will be far from straightforward.

     First, whether or not it is immediately apparent, these statements imply a sweeping expansion of federal regulation of research involving human subjects. Paradoxically, cats, dogs, rabbits, hamsters, guinea pigs, and nonhuman primates have more federal protection from the risks of participation in research than do humans.3 The federal government has regulated all research on these animalsregardless of the source of fundingsince the Animal Welfare Act was first enacted in 1966. In contrast, the only research involving human subjects that is regulated by our government is that which a) is funded by one of seventeen federal agencies, b) is conducted without federal funds at an institution voluntarily extending federal oversight to the research, or c) involves drugs, devices, or biologics falling within the jurisdiction of the FDA. Absent these conditions, individuals with concerns or complaints about their treatment have no recourse except through civil litigation or criminal statutes. Thus at present, the minimum protections NBAC and the President seek are not even provided in all research conducted or paid for by the federal government, let alone that performed in the private sector.

     While we cannot know how much unregulated research on human subjects takes place in the United Statesprecisely because it is not regulatedindications are that it is significant. Information about problematic practices in such research surfaces with sufficient regularity that expanded government oversight must be seriously considered.

     Second, our system for the protection of human subjects of research is more than 30 years old, and, while the basic system is sound, we know that it has shortcomings. Beyond our knowledge of the existence of problematic unregulated research, we know that even regulated research may be exposing human subjects of research to inappropriate risks. Some of the deficiencies in the current regulatory structure and implementation are described in the Report of the DHHS Inspector General, Institutional Review Boards: A Time for Reform (June 1998), the Report of the Human Radiation Interagency Working Group (March 1997), the General Accounting Office (GAO) Report, Scientific Research: Continued Vigilance Critical to Protecting Human Subjects (1996), and the findings of the Advisory Committee on Human Radiation Experiments (ACHRE) (October 1995).4 To implement fully the NBAC resolution and give meaning to the Presidents declaration, some of the identified problems in the current system must be corrected.

     A pivotal issue is how federal oversight in our purposefully decentralized system of oversight for human subjects is fractionated, with 17 separate federal agencies holding responsibility. The decision to place primary responsibility for human subject protections with local IRBs at institutions conducting research is well suited in

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many respects to our thriving research system. But federal oversight and protections are unevenly implemented and variably enforced, leading to serious gaps in human subject protections.

     Another issue that NBAC must confront directly is the federal commitment to human subject protection as revealed through the resources devoted to the task. There is evidence that funding in this area has declined despite significant increases in research.5 Unless accompanied by adequate resources, neither reforms of our existing system nor expansion of federal protection will produce meaningful or long-lasting change.

     Any proposal for change should be grounded in a clear statement of principles and goals: What is to be accomplished? The NBAC resolution already contains two goals: informed consent and independent ethical review for all persons enrolled in research. But the resolution does not define the research it intends to encompass or the level of risk at which these twin protections should attach.

     Comprehensive application of the present federal definition of researchpurposefully designed to be broad in its application and reachcould sweep myriad low-risk activities into a regulatory structure with unknown costs and implications. Activities that have never before been labeled as research could become subject to regulation, commanding resources for their review and oversight, ultimately to the detriment of human subjects in higher risk situations.

     Many of this nations 3,000-plus6 IRBs are already overloaded by their current workloads. As the GAO report observes:

IRB reviews are labor intensive and time consuming, forcing boards to balance the need to make reviews thorough against the need to get them done. IRB membersare not paid for their IRB service. Board members themselvesface a heavy workload and others in the research community have raised concerns that heavy workload impairs IRB review.7

     Research institutions would complainand with some meritif their workload is increased by a broad expansion of types of research requiring IRB review. One result could be a dramatic increase in the number of for-profit IRBs, or an incentive for IRBs to provide superficial reviews, or both. Careful design and implementation will be required to avoid a system that substitutes mechanical review for substantive ethical considerations.

     Expanding federal jurisdiction to assure that no person is enrolled in research without the twin protections specified by NBAC requires care and focusand will require changes in federal law and the commitment of additional federal resources to assure compliance with that law. To explore the issues raised by a unification of oversight into one federal agency and by a proposed expansion of federal oversight of research involving human subjects, we must examine 1) the present structure of federal regulatory protection, including its functioning, shortcomings, and the gaps in its coverage and 2) practical problems inherent in expanding the scope of federal oversight. These two issues are intertwined to a considerable degree.

II. The Present Federal System for Human Subject Protection

Government regulation frequently arises as a reaction to revelations that disturb the public conscience. The federal oversight of research involving human subjects is no exception. As recounted in David J. Rothmans

Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision-Making,8 the entry of the federal government into this realm was driven by a combination of dramatic scientific/medical advances and scandals concerning abuses of human subjects of research. Medical advances in genetic engineering and heart transplantation gave rise to questions about the beginning, end, and quality of life. At the same time, disclosure of the now infamous Tuskegee experiment in 1972 and the abuses of human subjects detailed in Dr. Henry Beechers 1966 paper in the New England Journal of Medicine drew attention from the media and Congress.9 These in turn opened new areas of ethical debate including whether certain procedures should be governed outside the physician-patient relationship. More sophisticated versions of these questions are still with us today.

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     The reaction of the biomedical research establishment to these questions and to the prospect of government intrusion into the historical preserve of physicians and researchers was negative and strongbut not sufficient to convince Congress that patients and human subjects of research would be adequately protected without government intervention. Nonetheless, the strength of the reaction helped to shape the system of protection that resulted; similarly strong reactions can be expected to new proposals for change.

A. Background and Overview

Before moving to expand federal protections to subjects of currently unregulated research, we should examine the present system, which has grown incrementally over a period of years. The first federal policies covering research funded by the Department of Health, Education and Welfare (now DHHS) were issued in 1966. The first congressionally mandated commission, the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (National Commission), started its work in 1974.10 It produced ten reports over four years that provide the ethical foundation for the system of protections in place today. Even so, it took until 1991 for a subset of federal agencies to agree upon the Federal Policy for the Protection of Human Subjects11 as the core regulation governing research conducted by or under the auspices of the government. This policy is often referred to as the Common Rule. The Common Rule is not followed by all federal agencies, and it is unevenly enforced by those that do.

In 1994, Dr. Robyn Y. Nishimi of the Office of Technology Assessment (OTA), testified before Congress that:

No statutegoverns the general oversight of research involving Americans. Moreover, the current system, while changing incrementally, has fallen short of implementing, or did not implement at all, recommendations made between 1973 and 1982 by an ad hoc committee of DHEW, a congressional report and two congressionally mandated commissions.12

     Research involving human subjects may be regulated by the federal government through three separate mechanisms: a) because it is sponsored by a federal office or agency subscribing to the Common Rule; b) because an institution conducting research not sponsored by the federal government has voluntarily granted jurisdiction over the research to OPRR through a negotiated assurance; or c) because the research involves regulated drugs or medical devices over which the FDA has jurisdiction. An unknown quantity of research is not regulated either because the sponsoring/conducting agency does not subscribe to the Common Rule or has not negotiated an assurance extending federal jurisdiction or because the research is privately sponsored/conducted and not subject to FDA approval.

1. The Common Rule

Summary of Common Rule Provisions. The approach of the Common Rule to regulation of human subject research is decentralized, involving negotiation of assurances by the institutions where research is conducted with federal agencies certifying that certain procedural and substantive protections will be provided. While these assurances are received and overseen by the various federal agencies, review of specific proposed experimental protocols and informed consent forms occurs at the local level through IRBs. Federal requirements govern the composition and activities of IRBs, but as we shall see, true oversight and accountability for the rigor and consistency of IRBs has not been attained.

     Six categories of research are exempt from full IRB review under the Common Rule.13 These review procedures permit research meeting specific, narrow criteria to proceed without any formal review. The six exemption categories, developed with public comment and through negotiation and policy formulation involving an interagency committee over a period of ten years, offer important insight into one mechanism that might be employed to address the practical problems that could arise from broadening the scope of federal regulation. (See below.) There are additional categories of research for which IRBs may use expedited review procedures,

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on the theory that the types of research involved, like voice recordings or collection of fingernail clippings, are less intrusive and pose a low level of risk to the subject.14 Application of the Common Rule. Seventeen federal agencies that fund or conduct research subscribe to the Common Rule and thus use an approach similar to that of DHHS, the lead federal agency in this area, with the important exception that most do not have an active program for assuring compliance with applicable regulations. While there is no definitive assessment of how many federal agencies conduct or fund research on human subjects, the 1981 report of the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Protecting Human Subjects, documented that 23 federal entities funded research involving human subjects.15 Dr. Nishimi of OTA testified to Congress in 1994 that:

a definitive picture of current federal implementation and oversight of existing regulations to protect human research subjects is not available.Currently, information from all agencies on the total number of all research grants or contracts, total funding for research and grants involving human subjects, and number of full time equivalent personnel devoted to assurance and compliance has not been collected in a coordinated or centralized fashion.

For some agencies, information even limited to the number of, funding levels for, and types of research involved for current grants or contracts using human subjects could not be reported as recently as March 1994, although the common rule has been effective since June 1991. Without such information, ensuring that proper institutional assurances are in place and then overseeing compliance would appear to be problematic.16

     Within DHHS, OPRR assumes oversight responsibility for both human and animal subjects of research. The FDA also has responsibility for protecting the rights and welfare of human subjects of research, in the context of its required approvals for drugs and medical devices. While both OPRR and FDA have mechanisms for reviewing cases of alleged noncompliance with federal regulations and responding to them,17 most other agencies do not. As Dr. Nishimi noted in 1994:

agencies will not be aware of violations of existing regulations unless a rigorous system is in place to monitor compliance. Put another way, those Departments and agencies that are not looking for problems will not find any problems.18

The ACHRE inventoried federal experiments on human subjects and found that:

In most federal agencies, current mechanisms of oversight of research involving human subjects are limited to audits for cause and a review of paperwork requirements. These strategies do not provide a sufficient basis for assuring that the present system is working properly.19

2. OPRR Oversight System

OPRR relies heavily upon the assurances it negotiates with institutions conducting research. These assurances contain the institutions provisions for protecting the welfare of human subjects and generally follow common patterns. In addition to the promises institutions provide in their negotiated assurances, OPRR provides educational support and information to IRBs and queries institutions about reports of noncompliance. OPRR conducts a number of record reviews through paper correspondence and a much smaller number of on-site, for-cause reviews of IRB effectiveness. Both the GAO and the DHHS OIG compliment the effectiveness of OPRRs compliance reviews, but both also comment upon the extraordinarily limited extent of on-site visits, due to staffing and budgetary constraints.

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     Currently, OPRR negotiates an assurance with each institution that receives research support from DHHS.20 Each assurance requires significant amounts of time and review by OPRR. According to the GAO, in 1996 OPRR had about 14 full-time equivalent staff devoted to human subject protection, with a budget for those activities of under $1 million. OPRR augments its professional staff with three physician volunteers.21 Most major institutions accepting federal research funding negotiate Multiple Project Assurances (MPAs) with OPRR through which they agree to provide the same protections to all subjects of research conducted at the institution that they do for research funded by DHHS. There are almost 450 MPAs covering more than 750 entities operating around 700 IRBs; they are virtually all in the United States.22 Two to four times as many institutions negotiate only Single Project Assurances (SPAs) for each individual project funded in whole or in part by DHHS (covering around 3,000 IRBs), or Cooperative Project Assurances (for multisite clinical trials), with another 1,250 associated IRBs.

     There are about 3,000 active SPAslocations where we know that some DHHS-regulated research is conducted but no MPA is in place to cover other research that may be performed at that institution.23 At these institutions, other research involving human subjects may occur without any governmentally provided protections for the subjects of that research. This does not necessarily mean that the research is not reviewed by an IRB, as institutions may choose voluntarily to extend those protections to all subjects of researchor they may not. It does mean that there is no federal jurisdiction to investigate if a subject of research files a complaint.

     OPRR reports that negotiation of assurances for SPAs requires more time than other negotiations, because they usually involve OPRR scrutiny of protocols and informed consent documents from institutions with little or no history of review of research involving human subjects. Because DHHS funds research in 80 countries around the world, institutions negotiating SPAs are not all in the United States.

     These and other recent reviews of the IRB system emphasize the changes that time and resource constraints have brought to their oversight by OPRR. While all contribute to a conclusion that OPRR does a good job of protecting human subjects of research, they also illustrate that its resources are inadequate for its present responsibilities and indicate areas where changes could strengthen its performance.24 The assurance negotiation process, for example, has by most accounts become routinized.25 The NBAC-commissioned paper by Dr. McCarthy provides background on the educational nature of the assurance negotiation process in its early phases: He implies that these negotiations were usually conducted on-site at institutions and describes how mutually beneficial these exchanges were, both for institutions with little background in these issues and for OPRR officials in gaining insight into the institutions culture. By now, the negotiation process has lost much of this educational flavor; perhaps its time has just passed.

     The McCarthy paper also describes an OPRR that was able to sustain a much larger educational program than is now the case. As an ongoing constant educational program is essential if consistency is to be achieved in a decentralized system, this is a serious matter. It is not an overstatement to suggest that, in a large distributed oversight system, high-quality educational programs are the cornerstone of true accountability. The report of the ACHRE went so far as to recommend that:

efforts be undertaken on a national scale to ensure the centrality of ethics in the conduct of scientists whose research involves human subjects.The necessary changes are unlikely to occur solely through the strengthening of federal rules and regulations or the development of harsher penalties.The federal government must work in concert with the biomedical research community to exert leadership that alters the way in which research with human subjects is conceived and conducted so that no one in the scientific community should be able to say I didnt know or nobody told me about the substance or importance of research ethics.26

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     Much of OPRRs ability to conduct such programs has since been curtailed by budgetary reductions and limitations, although an ongoing set of programs is offered annually through co-sponsorship arrangements. Dr. McCarthy raises cautions against the conflicts of interest that can arise when regulated institutions are assuming responsibility for part of the cost of educational programs in this way.

     OPRRs reliance upon a paper-based and time-intensive assurance negotiation system is no longer desirable. OPRR agrees with the calls from external observers that it is time to make changes in the negotiation of assurances.27 Replacing the assurance system with a streamlined registration system seems a sound alternative. If change of this nature were adopted expeditiously, it would free some resources for activities more conducive to true accountability. OPRR should be able to make this change without regulatory modification, but should be encouraged to do so by NBAC.

     Other recommendations of the OIGseveral of which mirror changes OPRR staff have indicated they would like to adoptwill require more resources than are presently available to OPRR. This is a central issue with which NBAC must grapple as it formulates it recommendations.

3. FDA Oversight System

The FDA is responsible for the safety and effectiveness of medicines and medical devices. As part of its regulatory responsibilities, FDA requires that studies involving investigational new drugs, devices, and biologics receive review and approval by an approved IRB and that researchers submit statements that they will uphold ethical standards. FDA has concurred with the Common Rule, but has not adopted it in its entirety; while its regulations are largely congruent with those that OPRR enforces, there are differences in its IRB and informed consent regulations.

     A major difference is that FDA does not require or negotiate assurances with institutions. It oversees IRBs through an inspection program, in which it routinely performs on-site procedural reviews of IRBs to determine whether they are in compliance with their own procedures and with applicable FDA regulations. The GAO reported that FDA employed about 13 full-time equivalent staff members devoted to IRB inspections in fiscal year 1995.28 FDA also has monitoring activities for individual drug studies and for clinical trials. Each involves reviewing compliance with consent requirements and other human subject protection protocols.

     The GAO reviews concluded that while the FDA program is rigorous and that it detects (and corrects) problems in human subject research, FDAs inspection program is geared more toward protecting the eventual consumer of the drug than the subjects on whom the drug was tested.29 If NBAC wishes to assure protection for human research subjects, this observation should trigger serious examination and consideration.

4. Nonsubscribing Federal Agencies

Subjects of research conducted or funded by federal agencies that do not subscribe to the Common Rule do not receive its core protections. There are indications that research is funded or conducted by the Nuclear Regulatory Commission, the National Endowment for the Humanities, and the Department of Labor.30 In 1995, the ACHRE found that the magnitude of research conducted by federal agencies not in compliance with the Common Rule is a significant concern and recommended that there be an assessment of the level of that research. It further recommended action to ensure that all subjects are afforded the protections it offers.31 Anticipating the ACHRE findings, President Clinton issued an Executive Memorandum in 1994 intended to address gaps in government coverage; specifically, he ordered that all federal agencies and departments should come into compliance with the Common Rule and to suspend noncompliant experiments immediately.32 There is no evidence that any department or agency suspended a single activity following the Presidents instruction. The staff of NBAC is researching the issue of federal agency compliance with the Common Rule and this Executive Memorandum.

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5. A CaveatNot All Unregulated Research Goes Without Review

It is important to note that federal regulation is neither the only mechanism through which research is independently reviewed nor is it the only way participants in research are offered the protection of informed consent. It may not be appropriate to assume that expanding the scope of federal regulation is the only way to achieve the twin goals of assuring informed consent by subjects and objective review of protocols. Many universities extend to nonfederally funded research the same oversight required by federal regulation, mandating that all research conducted at the institution is subject to review by an IRB. Of course, in virtually all cases this voluntary extension lacks independent compliance oversight, so NBAC must confront the degree to which it considers compliance oversight to be essential to a federal protection system.

B. Documented Shortcomings of the Present System

Two recent reviews, one by the GAO in 1996 and one by the OIG of DHHS in 1998, document serious shortcomings in the functioning of IRBs across the country.33 Because our decentralized system depends upon local IRBs for review of research protocols, IRBs are the lynchpin of our human subject protection system. The two most recent reports build upon the earlier findings of the ACHRE.

     These reports follow a string of earlier reports examining shortcomings in our systems of protections, and containing recommendations that have not been fully implemented. Recall Nishimis 1994 congressional testimony noting how many recommendations delivered over the decades have not been implemented. In that same testimony, she characterized national responses to problems as fitting a crisis management model, in which publicity leads to a commission, but few actual changes. A footnote to her testimony records that the Presidents Commission made a follow-up report to Congress two years after its first report and called the progress in the interim disappointing. Nishimi, in 1994, stated that: The Commission identified numerous deficiencies in agencies mechanisms to protect human subjects. It made a series of recommendations to improve Federal oversight, but to date virtually none has been implemented.34 The ACHRE found in its 1995 report that in comparison with the practices and policies of the 1940s and 1950s, there have been significant advances in the protection of the rights and interests of human subjects of biomedical research. However, we also find that there is evidence of serious deficiencies in some parts of the current system. Their review found evidence of substantial variation in the performance of institutional review boards as well as in review of research proposal documents and in informed consent documents. Most importantly for NBAC, the committee found evidence of confusion over the distinction between research and therapy.35 It is worth remembering that the original National Commission spent a great deal of time in the early 1970sand commissioned several analyses to assist its deliberationsexamining the distinction between research and therapy as it set about devising a recommended definition of research to be regulated. ACHRE also articulated concerns about adult subjects with questionable capacity and research involving institutionalized children. NBAC is already addressing the concerns ACHRE identified about adult subjects with questionable capacity; the issue of the distinction (if any) between research and therapy will continue to be central to all discussions of appropriate regulatory scope.

     Consistent with the comments of other observers, ACHRE recommended that IRBs give more attention to activities that pose more than minimal risk to subjects and that they seek to reduce paperwork and procedural requirements for activities posing less than minimal risk. In other words, focus resources on areas of greatest risk and concern to subjects.

     GAO, in its 1996 review of human subject protections, found that [t]he detection of recent instances of potential or actual harm to subjects both demonstrates that abuses can occur and also suggests that current oversight activities are working[but] various time, resource and other pressures have reduced or threaten to

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reduce the effectiveness of such oversight.36 GAO found that the heavy workload of IRBs can weaken their oversight; that OPRRs restricted site visit schedule and its location within the National Institutes of Health (NIH) hamper the effectiveness of its oversight of IRBs; and that changes in the nature of research and pressures for availability of unproven medical treatments make it difficult to protect human subjects.37 GAO also commented upon the organizational weakness in the location of OPRR within NIH that is examined in the NBAC-commissioned papers by Drs. Fletcher and McCarthy.38 This is a topic NBAC must address in its final recommendations.

The OIG reports find that the effectiveness of IRBs is in jeopardy39 with six major findings:

1.
  
IRBs face major changes in the research environment, including those stemming from the expansion of managed care, increased commercialization of research, proliferation of multisite trials, new types of research, increased number of research proposals, and the rise of patient consumerism;
2.
  
IRBs review too much, too quickly, with too little expertise;
3.
  
IRBs conduct minimal continuing review of approved research;
4.
  
IRBs face conflicts that threaten their independence;
5.
  
IRBs provide too little training for investigators and board members; and
6.
  
Neither IRBs nor HHS devote much attention to evaluating the effectiveness of IRBs.40
While the OIG report found that OPRRs on-site visits provide a better basis for assessment of an IRBs

performance than either its assurance process or the FDA inspection process, it also noted that OPRRs resource constraints prevented it from making more than one for-cause site visit in the calendar year between April 1997 and May 1998. The OIG report stressed that it is a cardinal failing of our present system that neither OPRR nor FDA have a primary focus on assuring the effectiveness of IRBs. While the OIG report does not document any widespread abuses, the fact that we have no effective mechanism for assuring the accountability of IRBs is cause for grave concern.

     The OIG report recommends reengineering the federal oversight process, with specific suggestions for revamping both the OPRR assurance process and the FDA inspection process for IRBs. Several recommendations focus on modifying procedural requirements in order to focus more effectively upon fundamental protections for human subjects of research. This is a theme that NBAC should embrace in all of its recommendations for change.

     These findings only reinforce the sense that our existing system requires reform. While these reforms should be included in any recommendations made by NBAC, they should accompany, not supersede, additional changes to address identified risks to human subjects in presently unregulated research.

Recommendation 1: Correct Identified Deficiencies in Existing Federal Human Subjects Protection System

Before recommending that the federal government assume expanded responsibility for protection of human subjects involved in research, we should assure that it can fulfill its present obligations appropriately. We know our present review system has defects. Of those issues, the following seem most relevant to the expansion and unification questions posed by NBAC.

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Recommendation 1A: Streamline the Assurance System

A number of informed observersincluding some within OPRR itselfhave come to believe that the existing assurance negotiation process has lost much of its original utility and has instead become unduly bureaucratic and cumbersome. While the process had important educational components in the early years of federal regulation, now that research institutions have become more sophisticated in this area, its time may have passed. Dr. Gary Ellis, testifying before the Subcommittee on Human Resources of the Committee on Government Reform and Oversight of the United States House of Representatives, acknowledged as much.41

The most consistently proposed change that is relatively easily implemented (i.e., without any regulatory modification) involves transforming the assurance system into a simplified registration system.

Streamlining the present assurance system would allow precious resources to be redirected to higher priority activities, including education and a more rigorous IRB performance-monitoring system. (Redirection of existing resources alone is unlikely to be sufficient to meet the full need but would be a good first step.) For example, if a registration model is adopted, instead of negotiating each assurance, OPRR would require each regulated entity to register with OPRR, providing the minimal amount of information required by the regulations.42 This approach would preserve the essential tether of the government to the system of institutional protections for the purposes of education and, when necessary, compliance oversight.

Recommendation 1B: Achieve Consistency Across the GovernmentRequire Full Adherence to the Common Rule

Across the federal government the uneven application of existing regulations requires improvement: Even after President Clintons 1994 directive, not all federal agencies subscribe formally to the Common Rule, and among those that do the level of adherence is mixed. NBAC staff are studying current levels of compliance among federal agencies. Any recommendations formulated by NBAC should explicitly requireat a minimumgovernment-wide compliance with human subject protection regulations.

Recommendation 1C: Achieve Consistency Across the GovernmentUnify Government Oversight

In addition to requiring all government agencies to adhere to the Common Rule, NBAC should recommend unification of government oversight of human subjects in one federal agency or office. Given the uniform positive reviews from a variety of observers for OPRRs expertise and effectiveness, this function should be assigned to OPRR, although the structure will require modification both to address the independence of the monitoring function. (See Recommendation 1D below.) Separate FDA jurisdiction over drugs, medical devices, and biologics should be retained, but FDA and the OPRR successor should enter into a Memorandum of Understanding to coordinate their functions and reduce the burden on multiply regulated entities. See further detail on this topic below.

Recommendation 1D: Assure Independence of the Governments Monitoring Function

As noted by multiple observers from GAO to DHHS OIG to Drs. Fletcher and McCarthy, OPRRs placement within DHHS presents serious structural problems that must not be perpetuated. A supplemental statement issued by GAO in response to congressional questions following the presentation of the GAO report noted: “…a potential weakness exists because NIH is both the regulator of human subject protection issues as well as an institution conducting its own human subject research. The Director of NIH, therefore, has responsibility for both the success of NIHs intramural research program and for the enforcement of human subject protections by OPRR.43 An approach for resolving these structural conflicts of interest must be incorporated into any proposed federal oversight mechanisms. The most obvious mechanism is to move OPRR (or any successor office/agency) out of NIH and place it elsewhere within the executive branch. Any successor office/agency should have the weight of authority necessary to carry out its mission, as well as the necessary resources. See Section IV below.

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Recommendation 1E: Provide Adequate Resources

The current OPRR does not have enough staff or a large enough budget to meet its current mandate adequately, let alone to execute expanded responsibilities. It should be of serious concern that the financial commitment of DHHS to human subject protection, measured in financial terms, has been declining over time, even while research funding is increasing.44 While it is likely that additional resources are required to meet existing compliance oversight responsibilities, it seems without question that current resources for educational programs are inadequate. The consistency and quality of any decentralized system is necessarily dependent upon careful and continuing education of participants across sites. Documented deficiencies in the operation of IRBs call for more educational efforts and performance assessments; these tasks cannot be undertaken for research under OPRRs current purview without additional resources. These costs should be assessed and addressed in addition to the projected costs for any new responsibilities. Mechanisms for addressing these shortcomings must be incorporated into any NBAC recommendations.

Reviews of the performance of OPRR in protecting subjects repeatedly show that it has the ability to address these shortcomings, but does not have sufficient resources for doing so. OPRR comes up short in any measure of educational activities, site visits, and timely resolution of allegations of noncomplianceto the detriment of current human research subjects.

Assuming identified deficiencies in the existing oversight system are corrected, then NBAC can move to considering expansion of federal jurisdiction in its effort to improve the federal regulatory system for the protection of human subjects. Rather than expanding regulation globally, however, and then finding mechanisms for removing low- or no-risk research from its purview, this paper recommends a different approach.

III. Issues Involved in the Expansion of Federal Oversight

Beyond the responsibility of the federal government to address known deficiencies in our system, we also know that there are human research subjects who are not receiving basic federal protections and who should be. How to provide those protections effectivelyidentifying the core protections to be provided around which societal consensus exists, focusing upon serious risks and with a reasonable cost/benefit ratiois the challenge. NBAC must fully understand the gaps in current protection and practical problems that must be solved before recommending an expansion of federal oversight to encompass privately conducted research.

A. Gaps in Federal Protection

The OIG report on IRBs and the ACHRE report illustrate places where even research that is covered by federal regulation may not be receiving meaningful or accountable oversight. Beyond that, current federal regulations for protection of human subjects do not reach: research conducted or funded by federal agencies not subscribing to the Common Rule; research that is not federally funded conducted at institutions with SPAs and not covered by that institutions assurance; and privately conducted research that is not subject to FDA jurisdiction. In none of these areas can it be assured that NBAC twin protections of informed consent and independent review are provided.

     Dr. Gary Ellis, Director of OPRR, and others have offered examples where potentially harmful research has been reported, but where the subjects are not protected by federal regulation.45 Recent news reports about Viagra, the male potency pill contain references to clinics beginning their own research on its effects on women.46 (See Attachment A.) Are the participants in those efforts likely to receive the twin protections of informed consent and independent review of the risks? Do we, as a society, believe they should?

     And what about the students and families about whom information would be stored in the database described in a January 1997 report in the Washington Post? (See Attachment B.) That report described a school district implementing a student database that would let schools compile medical and dental histories and

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records of behavioral problems, learning disabilities, and family income. The newspaper report indicated that the new database would allow administrators to monitor whether students of a particular ethnic background or sex were doing better or worse than others in English, algebra or any other course.a broader database would help administrators examine demographic, academic and extracurricular information in an effort to pinpoint causes and solutions.47 Such databases could also provide a rich resource for researchers, but research uses are not currently regulated.

Other examples abound. They include research conducted at or by:

and: a December 1996 publication in a professional journal for reconstructive surgeons describing a prospective study comparing lateral and standard face lifts; there is no indication that patients were aware of or consented to their inclusion in the study.51 (See Attachment C4.)

and: team management research in which unsuspecting individuals were subjected to a sham robbery, resulting in significant stress, fear, and anxiety54 (see Attachment C7); another complainant to OPRR described fright response research in which participants were subjected to unexpected and disturbing visual stimuli.

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     Other research-related activities that could, and in some cases information exists to suggest they already have, present risks to human subjects include health services research and internal evaluation research. Health services research is increasingly common as managed care becomes more pervasive and typically involves efforts to measure efficacy and cost-effectiveness of various treatments in managed care organizations. Internal evaluation research involves comparisons of management techniques, labor practices, and other corporate research into how employees like or perceive their work environment. It will be a challenge to find the lines between benign surveys of employee satisfaction and more intrusive and/or coercive research that could compromise employee privacy. But while some of these examples are more egregious violations than others, none of them are currently regulated unless the research is funded by one of the Common Rule agencies.

B. Practical Problems in Expanding Federal Oversight

What might be the consequences of expanding the current definition of research and applying it globally to all research involving human subjects? More particularly, what is the wisdom, practicality, and cost-effectiveness of bringing a potentially broad range of activities under the scope of federal regulation?

1. What Should Be the Definition of Research?

Global applicability of the current definition of research could encompass many activities that impose very little or even no risk to subjects of that research. While the scope of federal protection is narrow, the current definition of research used for regulated activities is very broad:

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Research means a systematic investigation designed to develop or contribute to generalizable knowledge.58

     Many forms of polling, much market research, and arguably some forms of journalism could be considered systematic investigation designed to develop or to contribute to generalizable knowledge that is obtained through intervention or interaction with individuals or that involves identifiable private information about those individuals. Differentiating between activities that should be covered and those for which expanded federal regulation might be burdensome could consume significant resources and time on the part of many individuals and could prove divisive and distracting from the goal of protecting Americans from risk of serious harm through participation in research.

     Should the current definition be used as is, or could it be modified to avoid such a result? The current definition was purposefully designed to be assure that subjects of research would be protectedwhatever the research might be. Appendix Two of the Belmont Report (the report of the National Commission) contains a number of commissioned papers, at least four of which address the boundaries between research and therapy.59 These papers were commissioned as part of the National Commissions formulation of its recommendations, including the definition of research in its final report.

     When that definition was published in the Federal Register, only 21 comments addressed the proposed definition of research in the rulemaking process.60 The commentary accompanying the final regulation in January 1981 characterized those comments as follows: While a few commentators favored the proposed definition because it offered flexibility to the IRB, a majority of the twenty-one opposed or raised questions about the definition. Several commentators felt that the definition is too broad and should be restricted to biomedical research.…” The DHHS Response to the comments observed that:

HHS believes that public concerns that the definitions are too broad will in most cases be met by the exemptions from the regulation. The National Commission, although not identifying specific fields of research, clearly intended to include behavioral studies in the recommended definition of research. HHS agrees with this conclusion and does not believe that the definition of research violates the rights of investigators given that the regulations exempt research which offers little or no risk to the rights and welfare of human research subjects.61

     While one approach to the problem of sweeping low-risk research into an expanded federal regulatory scheme is to narrow the definition of research, the continuing progress of scientific advances applicable to human treatment suggests this is not a sound approach. No better definition of research than that currently used has attracted consensus support in the almost 30 years this definition has been in place. In the absence of a tested alternative, altering the definition itself seems unwise.

     If the present definition is perpetuated rather than modified, it is likely that development of new exemptions should be considered to obviate unintended consequences of expanded regulatory scope and to focus government protections upon areas posing the greatest medical and ethical risks. It should be possible to craft appropriate exemptions for very low-risk research. In approaching such a task, the risk of harm must be balanced with the burden of regulation. On the other hand, given the extended and somewhat tortuous process required to develop and refine the current definitions and exemptions, some caution seems warranted. Before NBAC makes recommendations that might require the development of new exemption categories, alternatives should be carefully considered.

     For example, not only would it be necessary to develop consensus across a broad spectrum of constituencies about new exemptions, but regulatory language would need to be carefully crafted and tested. Based on experience, this might well take a period of years. Would the entire process of expanding the twin protections of

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informed consent and IRB review be delayed in the meantime, or would we go through a period in which potentially harmless or very low-risk activities would undergo unnecessary review? If the latter, what long-term effects might that have for a system that by many accounts is already overburdened and near the breaking point?

2. Who Decides an Activity Is Exempt? Conflict of Interest Questions

After the development of appropriate exemptions and embodying regulatory language, still another practical problem arises: Who will determine the applicability of the exemptions? It is fundamental that a person performing research has a conflict of interest in deciding that his or her research is exempt from review. This implies independent review, which raises a raft of troubling questions: Who will perform these reviews? How much paperwork will it require? For researchers not affiliated with universities, where will they find an appropriate IRB? Will this intensify existing incentives for a proliferation of for-profit IRBs? Might core ethical examinations be diluted by expanding the workload of IRBs along with the requirements for paperwork and review of low-risk research? At what cost might this occur?

     The prospect that expansion might divert valuable resources and energy from projects needing thoughtful ethical review is troubling. It is not difficult to envision the creation of an extensive and burdensome, possibly profit-driven, rubber-stamping review system that dilutes attention to the serious ethical issues that research involving human subjects can imply. This is an outcome no one seeks. Further, the costs are potentially very large.

3. Costs

The costs involved in globally extending the current system could be significant. One indicator of the possible costs is that each (single-site) protocol review by Independent Review Consulting, Inc., (a reputable for-profit IRB that provides IRB services for unaffiliated investigators) costs $1,200.62 This does not, of course, include the costs involved in preparing materials to be reviewed by the IRB. Assuming that the direct costs of non-institutional review boards are comparable to those of academic IRBs, very large sums of money (representing the costs of creation, review, and maintenance of required information) could be at stake in a dramatically expanded system of human subject protections, especially those involving low-risk activities. The cost/benefit ratio for such an approach does not seem advantageous, especially in todays political environment.

Recommendation 2: Expand Regulation Incrementally, Not Globally (at Least at First)

This recommendation proposes an alternative to expanding the scope of federal regulation very broadly and then crafting appropriate exemptions. It suggests adding targeted areas to the scope of federal oversight areas of research. Two possible mechanisms are proposed for NBACs consideration.

Recommendation 2A: Expand Jurisdiction Incrementally as Known Risks are Identified

As a starting place, NBAC might focus upon the goals articulated by the President of protecting subjects from unwitting participation and undue risk by focusing upon targeted areas. Given the estimate of the ACHRE that 40 to 50 percent of human subjects research poses no more than minimal risk of harm to subjects,63 it is all the more critical to focus any new regulatory energy on activities that put human subjects at risk. While we cannot know if ACHREs estimate will extrapolate to presently unregulated activities, it is a reasonable starting point for thinking about these issues.

The goal should be to define areas of national concern by focusing on documented instances where human subjects have been exposed to:

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n
  
where the protocols have not been subject to independent review for compliance with generally accepted standards of research involving human subjects.

The targeted areas would focus on categories of known risks”—research that we know puts human beings at risk, whether conducted privately or with federal support. An incremental approach seems more consistent with current trends in public policy, while still providing appropriate protections to residents of this country who participate in risky research activities. This approach would be more amenable to a documented cost/benefit analysis, and thus might be more persuasive to the public and to lawmakers.

Adopting this recommendation implies the development of categories requiring protection and procedures for invoking that protection. At first glance, likely candidate categories include:

Another, more controversial, category requiring serious examination is research that involves dignitary damage or breaches of confidentiality leaving the subject at risk.

An effort to identify and document known risks implies significant work, but this effort will likely be more productively expendedand generate greater supportthan that required to extend the present regulatory system to cover all research.

Recommendation 2B: Explore Expanding OPRRs Jurisdiction Without Statutory Change

Historically, OPRR has taken the position that the language of the Public Health Service Act64 requires mandatory compliance with its provisions only for research that is actually funded in whole or in part by DHHS. Thus, institutions filing an MPA voluntarily agree to apply federal regulations for human subject protections to non-DHHS research. Institutions that file SPAs have no obligation to ensure IRB review or informed consent for any other research involving human subjects. This may well be a more conservative interpretation of the Act than it requires.

NBAC should seek assistance and advice from the DHHS Office of the General Counsel to determine whether a broader reading of this statute is permissible. Specifically, research is not qualified in Sections 491(a) and (b)1 and refers to any biomedical or behavioral research involving human subjects. Can the Act be read to refer to all research at any institution supported by DHHS funds, not just research that is directly supported by DHHS?

Further advice and legal review will be necessary to explore this possibility. Such an expansion of OPRRs jurisdiction will require a considerable addition of resources to OPRR. While seeking such advice may seem burdensome, the possible gains for regulated entities and for governmental efficiency warrant the effort.

IV. Possible Structures for Unified Federal Oversight

Whether NBAC decides to expand federal jurisdiction to encompass areas of known risks or to pursue more global federal jurisdiction, a different federal structure will be needed than is now in place. Deficiencies of the existing system that should be addressed in any proposed reforms should include more consistency and coordination across the government, as well as in the governments interactions with regulated entities. Given the size of the federal government and the vast array of research sites across the country, NBAC should seek a structure that will provide a single office that works in a distributed style. Some existing agencies or offices that

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currently function in this way provide models that have much to offer as exemplars. These include the Office of Governmental Ethics (OGE), the Office of Special Counsel (OSC), and the Nuclear Regulatory Commission (NRC). Although different in size and mission, each has educational and compliance-monitoring responsibilities, and each operates in a decentralized, distributed fashion.

     Before considering the placement of the human subject protection monitoring system, one most important issue must be addressednamely, in a unified federal oversight system, what should happen to the current functions represented in OPRR and FDA?

A. Unify OPRR and FDA?

Although it is always simpler from the perspective of a regulated entity to have only one federal oversight office, the missions of OPRR and FDA are sufficiently distinct that a strong case can be made that their independent functions should be maintained. Further, this is clearly the most pragmatic solution, since they currently operate under two distinct statutory authorizations, and the political ramifications of attempting a unification seem more complex and difficult than the gain would warrant. FDA and OPRR currently work in a coordinated fashion and have significant overlap in their approaches to regulated entities.

     Thus, NBAC should recommend that these separate functionsdrug and medical device approval and research oversightshould remain the primary province of FDA and the OPRR successor, respectively. The OPRR successor should be responsible for all regulated research involving human subjects, both government wide, and whatever private research is added to the regulatory structure.

To enhance coordination and cooperation, the two agencies should enter into a Memorandum of

Understanding that addresses interagency cooperation and jurisdiction and establishes a formal coordinating function. This should include new agreements covering IRB oversight to assure that the protection of human subjects is addressed in a reasonable, cost-effective way, especially in light of the GAOs cautions about the substance of FDA IRB reviews and of concerns voiced by regulated entities about the sometimes burdensome nature of joint (and uncoordinated) jurisdiction by two federal agencies over the same IRBs.

     NBAC or the successor agency may need to commission an examination of other special-purpose agency IRB regulations (for example, those at the Centers for Disease Control and perhaps the Department of Energy and/or those in classified settings) to determine whether other accommodations or Memoranda of Understanding might facilitate appropriate regulatory oversight.

B. Possible Models

The following existing governmental offices offer insights into possible models for an OPRR successor office that would oversee all human subject research.

1. OGE

The mandate of the OGE is to prevent ethical misconduct within the executive branch; it has responsibility for the prevention of conflicts of interest and for resolving those conflicts of interest that do arise. There are five applicable federal statutes for which it has enforcement responsibility. The Office of Public Integrity in the Department of Justice reviews OGE ethics opinions because it has enforcement authority for the underlying criminal statutes.

     Created in the aftermath of the Watergate scandal, OGE was originally located within the Office of Personnel Management. During the Reagan administration, OGE became an independent agency. The Director is appointed by the President, with the advice and consent of the Senate, but that is the only politically appointed position in the agency. The remainder of the staff, about 80 people, are civil service employees. In contrast, OPRR has around 17 full-time staff members devoted to human subject protection (out of 28 total staff members). OPRRs

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FY 1995 budget was $2.25 million. Its FY 1996 budget was $2.13 million, and its FY 1997 budget was $2.10 million, a little more than half of which was spent on human subject protection activities.

     OGE promulgates standards of conduct based on 14 fundamental principles. Its advisory opinions and ethical guidance are widely disseminated in the federal ethics community to assist in keeping officials informed and up to date. OGE oversees a broadly decentralized program in which each federal agency names a Designated Agency Ethics Official (DAEO); these 144 officials report jointly to the head of the agency and to OGE. This model seems particularly relevant when considering a government-wide human subject protection function.

     OGE supports the DAEOs by developing educational materials and conducting training workshops for them and the other staff in each agency with responsibility for ethics compliance, who together comprise what is known as the federal ethics community. There are close to 12,000 part-time members of the federal ethics community, with about 400 of them serving on a full-time basis. While OGE audits their performance on a regular basis, the DAEOs hold significant responsibility within their agencies for educational programs and for compliance with congressional and presidential directives. This model of distributed responsibility dovetails nicely with the local control philosophy of federal oversight for research involving human subjects.

     Although OGE focuses its efforts on education and providing positive guidance in response to questions, it also maintains a significant audit program, with 27 full-time auditors. These auditors review advice provided by DAEOs, the content of agency ethics training programs, and required financial disclosure forms. When violations of the standards of conduct are substantiated, they can lead to administrative sanctions (including reprimands, time off without pay, and/or demotion). Violations of the five applicable statutes carry higher penalties. OGE has 77 full-time employees and an annual budget of $7.6 million. See Attachment D for further information on OGE.

     OGEs independence from other government agencies presents an example that would cure the structural deficiencies found in OPRRs placement within an agency that it must also monitor for compliance, as cited by GAO and Drs. Fletcher and McCarthy. At the same time, the joint reporting status of the DAEOs presents an interesting model that balances working within each agencys individual culture while achieving consistent policy interpretation. Further, its independent standing emphasizes the importance of the issue it monitors and insulates it from political pressures. Finally, the distributed model could prove equally strong in the setting of regulated institutions.

     On the other hand, OGEs independent status and relatively small size may also reduce its leverage in budgetary processes, as it may not always have a seat at the table when budgetary compromises are reached. Embedded within a larger federal agency, budgetary negotiations have a different complexion. It is difficult to predict the quality and consistency of top-level attention to issues of human subject protection if those responsibilities are placed in an independent agency or department, especially in periods lacking in public focus on these issues.

2. OSC

The OSC was originally part of the U.S. Merit Systems Protection Board, but became an independent federal investigative and prosecutorial agency in July 1989. The principal responsibilities of the OSC are three-fold: 1) investigating allegations of prohibited personnel practice; 2) interpreting and enforcing the Hatch Act (political activities of federal employees); and 3) operating a whistleblower disclosure hotline to receive information about wrongdoing in government. The OSCs role was expanded in 1994 to include investigation and prosecution of cases involving the denial of federal employment rights to veterans.

     The President appoints the head of the agency, the Special Counsel. The remainder of the staff, about 95 civil service employees, report to the Special Counsel to carry out OSCs responsibilities. OSCs 1998 budget was $8.4 million.

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     Although OSCs responsibilities are primarily executed within the executive branch, it serves as a useful model for NBAC because of its ability to work in a distributed, decentralized way across the full range of federal agencies. For example, OSC has jurisdiction to investigate allegations of prohibited personnel practices within any executive branch agency. These investigations are frequently conducted in conjunction with other government agencies. This model is particularly useful when thinking about oversight of intragovernment activities. See Attachment E for further information on OSC.

3. NRC

Holding wide regulatory and compliance responsibilities, the NRC operates on a completely differentand much largerscale than the previously discussed offices. Established as an independent agency in 1974 by the Energy Reorganization Act, the purpose of the NRC is to ensure adequate protection of the public health and safety, the common defense and security, and the environment in the use of nuclear materials in the United States. The NRCs responsibilities include regulation of commercial nuclear power reactors; medical, academic, and industrial uses of nuclear materials; and the transport, storage, and disposal of nuclear materials and waste. The NRC adheres to five Principles of Good Regulation that encourage ethical performance, openness to the public, efficient management and administration, clear regulations, and reliability.

     Five commissioners are appointed by the President and confirmed by the Senate for five-year terms. One of the appointed commissioners is designated by the President to function as the chairman. A civil service staff reports to an executive director, who executes the directives of the commission. The overall structure and organization of the NRC provide NBAC with another established model of an independent agency that works in a distributed way within federal agencies and at diverse academic and private sites throughout the country. Further, it provides a model to examine when considering suggestions, such as Dr. Fletchers, that OPRR (or its successor) needs a citizen advisory panel.

     Divided into divisions with specific responsibilities, the NRC has educational and compliance responsibilities similar to those of the OPRR, albeit on a much larger scale. Among its multiple divisions are one with responsibility for regulatory programs and another with responsibility for oversight and investigations. An Office of State Programs coordinates NRC activities with state and local governments as well as with other federal agencies and the sovereign Indian nations. NRC has 3,000 employees and an annual budget of $468 million. See Attachment F for further information on NRC.

     Given the magnitude of NRC, it is somewhat difficult to make relevant comparisons to how this model might operate if translated into the human subject protection area. One possibility is that NBAC, or some similarly constituted commission, could serve as the policymaking body, with OPRR and FDA staffs carrying out their present roles. In such a configuration, perhaps the OPRR (research-oversight) function would fall under the NBAC successor function while the FDA staff would remain in that agency but have dual policy guidance.

     If NBAC or a successor commission were to serve as the policymaking or advisory body for an OPRR successor, two issues must be addressed: 1) NBACs present expiration date (authority for human subject protection cannot be allowed to expire) and 2) the need for a revised charter to provide formal regulatory authority.

Recommendation 3: Explore Existing Models of Federal Offices/Agencies with Both Educational and Compliance ResponsibilitiesDesign NBACs Recommendations Based Upon Those Models

Devising an improved governmental structure for a unified human subjects protection system will take expertise beyond the scope of this paper. Aside from explorations of the policy and political implications of its recommendations, NBAC will need to commission legal analyses of what enabling legislation or regulation will be necessary to effect any structure it suggests. NBAC must also addressperhaps through additional commissioned papers or through advice from established governmental mechanismsreasonable resource allocations for the expanded functions it envisions.

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Because this problem has been so intractable for so long, I encourage NBAC to provide specific instruction and draft legislation as part of its final report to the executive and legislative branches. Otherwise, its recommendations could well become just one more report sitting on a shelf.

V. Conclusion

In its June 1998 report, the OIG of DHHS found significant cause for concern in the current operation of our human subject protection system. While the OIG found no widespread abuses of human research subjects, its report identified aspects of our current system in pressing need of reform. This report does not stand alone: The observations of the OIG echo and reinforce those of multiple other observers of the current system, including many inside the government who hold responsibilities for protecting human subjects of research.

     The challenge for NBAC is to devise recommendations for assuring substantive ethical consideration of the serious issues present in human subject research that can be enacted in the current political environment. This means addressing identified deficiencies in our current regulatory scheme, filling in some of the known gaps representing areas of real risk to residents of this country who participate in research, and assuring true accountability for this regulatory system in a cost-effective manner.

     Responding to these challenges requires retooling the existing federal structure to provide cleaner lines of authority, uniform implementation of existing rules across the government, and streamlined links between the government and local IRBs.

     Research subjectsparticularly those who are not told they are participating in experimental activities or those participating in research that has not received prior independent ethical revieware among the most vulnerable of our population. In permitting their rights, welfare, and dignity to be compromised, we compromise our own.

It is time to finish the job of protecting human subjects that began more than three decades ago.

Acknowledgments

I am very grateful for the kind and generous help accorded to me by many people during the course of this process. Ada Sue Selwitz (University of Kentucky), Joan Rachlin (PRIM&R), Paula Knudson (University of Texas Health Science Center at Houston), Eric Meslin (NBAC), Gary Ellis (OPRR), and Michael Walker (University of Illinois) reviewed drafts of this paper in progress and provided many helpful comments; any errors that remain are my own.

     A number of people gave graciously of their time and expertise in response to requests, including Stuart Gilman of the Office of Government Ethics, Victor Baird of the Senate Ethics Committee, Michelle Russell-Einhorn and Tom Puglisi of the Office for Protection from Research Risks, Allan Shipp of the American Association of Medical Colleges, Sal Giorgiani of Pfizer Pharmaceuticals, Mark Frankel and Al Teich of the American Association for the Advancement of Science, Erica Heath of Independent Review Consulting, Inc., and Robert Levine of Yale University.

     Melanie Marino provided research support and editorial assistance throughout the development of this paper. Debra Kincaid was her usual cheerful self in helping to make room for this project amongst many others.

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Attachments

A:
  
Kolata, G. Doctors Debate Use of Drug to Help Womens Sex Lives.New York Times National. April 25, 1998.
B:
  
Robberson, T. Plan for Student Database Stirs Opposition in Fairfax.Washington Post. January 9, 1997.
C1:
  
OPRR Compliance Oversight Log. Letter to Dr. Melody Lin, Compliance Oversight, NIH, received June 18, 1993. Obtained from the OPRR under the Freedom of Information Act.
C2:
  
OPRR Compliance Oversight Log. Regarding the Newark Beth Israel Medical Center, received September 28, 1994. Obtained from the OPRR under the Freedom of Information Act.
C3:
  
OPRR Compliance Oversight Log. Regarding the St. Vincent Hospital Medical Center, Portland, Oregon, received April 13, 1995. Obtained from the OPRR under the Freedom of Information Act.
C4:
  
Ivy, E.J., Lorenc, Z., and Aston, S.J. Is there a Difference? A Prospective Study Comparing Lateral and Standard SMAS Face Lifts with Extended SMAS and Composite Rhytidectomies.Plastic and Reconstructive Surgery. December 1996.
C5:
  
Adolf Coors Foundation Grants $240,000 to UCCS to Study Effects of Mercury Fillings.University of Colorado at Colorado Springs, Office of Public Relations. November 9, 1995. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.
C6:
  
OPRR Compliance Oversight Log. Received January 29, 1993. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.
C7:
  
Romano, L. A Night at the Office Became a Nightmare.Washington Post. January 29, 1997.
C8:
  
Letter from Dr. Gary Ellis to Dr. Curt Tompkins with attachments, April 28, 1997. Letter from Dr. Gary Ellis to Sung M. Lee, July 21, 1997. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.
C9:
  
Kolata, G. Selling Growth Drug for Children: The Legal and Ethical Questions.New York Times National. August 15, 1997.
D:
  
U.S. Office of Government Ethics. www.usoge.gov. Accessed June 11, 1998.
E:
  
U.S. Office of Special Counsel. www.access.gpo.gov/osc. Accessed June 11, 1998.
F:
  
U.S. Nuclear Regulatory Commission. www.nrc.gov. Accessed June 11, 1998.

Notes

1 NBAC, Full Commission Meeting, Arlington, Virginia, May 17, 1997.

2 William Jefferson Clinton, Morgan State University Commencement Address, May 18, 1997.

3 To be fair, research involving human subjects encompasses a much broader range of activities than does research involving animals. Few of the difficult issues raised by behavioral research, violations of confidentiality, or invasion of privacy arise when working with animals, for example, which makes the prospect of more broadly regulating research on humans more complex in some ways than devising regulations for the appropriate treatment of animal subjects of research.

4 OIG, DHHS, Institutional Review Boards: A Time for Reform (OEI-01-97-00193), U.S. Government Printing Office, Washington, D.C., June 1998. U.S. Government, Human Radiation Interagency Working Group, Building Public Trust: Actions to Respond to the Report of the Advisory Committee on Human Radiation Experiments, March 1997. Final Report: Advisory Committee on Human Radiation Experiments, U.S. Government Printing Office, Washington, D.C., October 1995.

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5 Statement of Robyn Y. Nishimi, Ph.D., Senior Associate, OTA, Hearing Before the Legislation and National Security Subcommittee of the Committee on Government Operations, House of Representatives, September 28, 1994, U.S. Government Printing Office, Washington, D.C., p. 164, referencing statements of Dr. Charles R. McCarthy, retired Director of OPRR. The DHHS OIG and GAO studies reinforce this conclusion.

6 Estimates of the number of IRBs operating in the United States range from around 3,000 to more than 5,000. OPRR oversees 700 IRBs associated with MPAs; about 1,250 associated with Cooperative Project Assurances; and around another 3,000 associated with SPAs. Personal communication from Tom Puglisi, OPRR, to C. K. Gunsalus, September 1998.

7 Report of GAO to the Ranking Minority Member, Committee on Governmental Affairs, U.S. Senate, Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, U. S. Government Printing Office, Washington, D.C., March 1996, p. 17.

8 Rothman, D. J., Strangers at the Bedside: A History of How Law and Bioethics Transformed Medical Decision Making, Basic Books, 1991, pp. 168189.

9 Beecher, H.K., 1966, Ethics and Clinical Research, New England Journal of Medicine 274:13541360.

10 Report and Recommendations of the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, U.S. Government Printing Office, Washington, D.C., 1978.

11 The Model Federal Policy for the Protection of Human Subjects, 56 Federal Register 28002, June 19, 1991.

12 Nishimi testimony, pp. 149150.

13 45 CFR 46, Revised June 18, 1991 (Effective August 19, 1991) Subpart AFederal Policy for the Protection of Human Subjects (Basic DHHS Policy for Protection of Human Research Subjects):

Unless otherwise required by department or agency heads, research activities, in which the only involvement of human subjects will be in one or more of the following categories, are exempt from this policy:

1.
  
Research conducted in established or commonly accepted educational settings, involving normal educational practices, such as (i) research on regular and special education instructional strategies, or (ii) research on the effectiveness of or the comparison among instructional techniques, curricula, or classroom management methods.
2.
  
Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures or observation of public behavior, unless: (i) information obtained is recorded in such a manner that human subjects can be identified, directly or through identifiers linked to the subjects; and (ii) any disclosure of the human subjectsresponses outside the research could reasonably place the subjects at risk of criminal or civil liability, or be damaging to the subjectsfinancial standing, employability, or reputation.
3.
  
Research involving the use of educational tests (cognitive, diagnostic, aptitude, achievement), survey procedures, interview procedures, or observation of public behavior that is not exempt under paragraph (b)(2) of this section, if: (i) the human subjects are elected or appointed public officials or candidates for public office; or (ii) federal statute(s) require(s) without exception that the confidentiality of the personally identifiable information will be maintained throughout the research and thereafter.
4.
  
Research, involving the collection or study of existing data, documents, records, pathological specimens, or diagnostic specimens, if these sources are publicly available, or if the information is recorded by the investigator in such a manner that subjects cannot be identified, directly or through identifiers linked to the subjects.
5.
  
Research and demonstration projects, which are conducted by or subject to the approval of department or agency heads, and which are designed to study, evaluate, or otherwise examine: (i) public benefit or service programs; (ii) procedures for obtaining benefits or services under those programs; (iii) possible changes in or alternatives to those programs or procedures; or (iv) possible changes in methods or levels of payment for benefits or services under those programs.
6.
  
Taste and food quality evaluation and consumer acceptance studies, (i) if wholesome foods without additives are consumed, or (ii) if a food is consumed that contains a food ingredient at or below the level and for a use found to be safe, or agricultural chemical or environmental contaminant at or below the level found to be safe, by the Food and Drug Administration, or approved by the Environmental Protection Agency, or the Food Safety and Inspection Service of the U.S. Department of Agriculture.

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14 45 CFR 46.110. Expedited review procedures for certain kinds of research involving no more than minimal risk, and for minor changes in approved research.

15 Report of the Presidents Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Protecting Human Subjects, U. S. Government Printing Office, Washington, D.C., 1981.

16 Nishimi testimony, pp. 162163.

17 21 CFR. 56 155 (b) states: The records required by this regulation shall be retained for at least 3 years after completion of the research, and the records shall be accessible for inspection and copying by authorized representatives of the Food and Drug Administration at reasonable times and in a reasonable manner. OPRRs authority to investigate derives from the Public Health Service Act, as amended by the Health Research Extension Act of 1985, Public Law 99-158, November 20, 1985, Section 491(2) which states: The Secretary shall establish a process for the prompt and appropriate response to information provided to the director of NIH respecting incidences of violations of the rights of human subjects of research for which funds have been made available under this Act. The process shall include procedures for the receiving of reports of such information from recipients of funds under this Act and taking appropriate action with respect to such violations.

18 Nishimi testimony, p. 162.

19 Final Report: Advisory Committee on Human Radiation Experiments, Chapter 18, Recommendation 13, Commentary.

20 45 CFR Part 46.103(a).

21 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, p. 6.

22 There is one MPA institution in Canada (McGill). Statistics on OPRR assurances and oversight in personal communication from OPRR to C.K. Gunsalus, August 10, 1998.

23 Statistics on OPRR caseload from personal communication, Gary R. Ellis to C.K. Gunsalus, April 1998.

24 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, pp. 1920. Institutional Review Boards: Their Role in Reviewing Approved Research, p. 13.

25 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, pp. 8, 19. McCarthy, C.R., Report for NBAC, Reflections on the Organizational Focus of the Office for Protection from Research Risks, 1996, p. 10. Institutional Review Boards: Their Role in Reviewing Approved Research, p. 12.

26 Final Report: Advisory Committee on Human Radiation Experiments, Chapter 18, Recommendation 9.

27 Testimony of Dr. Gary B. Ellis, Director, OPRR, Office of Extramural Research, NIH, DHHS, before the Subcommittee on Human Resources, of the Committee on Government Reform and Oversight of the U.S. House of Representatives, June 11, 1998.

28 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, p. 12.

29 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, p. 21.

30 Ellis testimony.

31 Final Report: Advisory Committee on Human Radiation Experiments.

32 President Clintons Order directs that all departments and agencies of the government cease immediately sponsoring or conducting any experiments involving humans that do not fully comply with the Federal Policy. Memorandum for the Vice President, the Heads of Executive Departments and Agencies, Subject: Review of Federal Policy for the Protection of Human Subjects, February 17, 1994.

33 OIG, DHHS, Institutional Review Boards: Their Role in Reviewing Approved Research (OEI-01-97-00190); Institutional Review Boards: Promising Approaches (OEI-01-98-0091); Institutional Review Boards: The Emergence of Independent Boards (OEI-01-97-00192);

Institutional Review Boards: A Time for Reform (OEI-01-97-00193), U.S. Government Printing Office, Washington, D.C., June 1998.

Scientific Research: Continued Vigilance Critical to Protecting Human Subjects.

34 Nishimi testimony, p. 157, footnote 3.

35 Final Report: Advisory Committee on Human Radiation Experiments, Chapter 17, Finding 22.

36 Testimony of Sarah F. Jagger, Director, Health Financing and Public Health Issues, Health Education and Human Services Division, U.S. GAO, before the Committee on Governmental Affairs, U.S. Senate, March 12, 1996.

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37 Ibid.

38 Scientific Research: Continued Vigilance Critical to Protecting Human Subjects, p. 20.

39 Institutional Review Boards: A Time for Reform, p. ii.

40 Ibid.

41 Ellis testimony.

42 45 CFR Part 46.103(b) requires that each institution provide certain specific information to OPRR.

43 Supplemental Submission by Sarah F. Jagger, Director, Health Financing and Public Health Issues, U.S. GAO, contained in letter to the Honorable Ted Stevens, Chairman, Committee on Governmental Affairs, U.S. Senate, March 20, 1996, in the Proceedings of the Hearing Before the Committee on Governmental Affairs, U.S. Senate, U.S. Government Printing Office, Washington, D.C., March 12, 1996, p. 399.

44 Nishimi testimony, 1994.

45 Letter from Dr. Gary B. Ellis, Director, OPRR to James F. Childress, Ph.D., Chairman, Human Subjects Subcommittee, NBAC, April 10, 1997.

46 Kolata, G., Doctors Debate Use of Drugs to Help Womens Sex Lives, New York Times, Sec. A, April 25, 1998.

47 Robberson, T., Plan for Student Database Stirs Opposition in Fairfax, Washington Post, Sec. A, January 9, 1997.

48 OPRR Compliance Oversight Log, Letter to Dr. Melody Lin, Compliance Oversight, NIH, received June 18, 1993. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

49 OPRR Compliance Oversight Log, Regarding the Newark Beth Israel Medical Center, received September 28, 1994. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

50 OPRR Compliance Oversight Log, Regarding the St. Vincent Hospital Medical Center, Portland, Oregon, received April 13, 1995. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

51 Ivy, E.J., Lorenc, Z., and Aston, S.J., Is There a Difference? A Prospective Study Comparing Lateral and Standard SMAS Face Lifts with Extended SMAS and Composite Rhytidectomies, Plastic and Reconstructive Surgery, December 1996.

52 Adolf Coors Foundation Grants $240,000 to UCCS to Study Effects of Mercury Fillings, University of Colorado at Colorado Springs, Office of Public Relations, November 9, 1995. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

53 OPRR Compliance Oversight Log, received January 29, 1993. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

54 Romano, L., A Night at the Office Became a Nightmare, Washington Post, January 29, 1997.

55 The National Human Genome Research Institute, Final Report of the Task Force on Genetic Testing: Promoting Safe and Effective Genetic Testing in the United States, September 1997.

56 Letter from Dr. Gary Ellis to Dr. Curt Tompkins with attachments, April 28, 1997. Letter from Dr. Gary Ellis to Sung M. Lee, July 21, 1997. Obtained from the OPRR under the Freedom of Information Act request by C.K. Gunsalus, 1998.

57 Kolata, G., Selling Growth Drug for Children: The Legal and Ethical Questions, New York Times National, August 15, 1997.

58 45 CFR 46.102: Human subject means a living individual about whom an investigator, (whether professional or student) conducting research obtains (a) data through intervention or interaction with the individual, or (b) identifiable private information.

     Intervention includes both physical procedures by which data are gathered (for example, venipuncture) and manipulations of the subject or the subjects environment that are performed for research purposes.

Interaction includes communication or interpersonal contact between investigator and subject.

     Private information includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record). Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information), in order for obtaining the information to constitute research involving human subjects.

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59 Levine, R.J., The Boundaries Between Biomedical or Behavioral Research and the Accepted and Routine Practice of Medicine,July 14, 1975; London, P. and Klerman, G., Boundaries Between Research and Therapy, Especially in Mental Health; papers by David Sabiston, M.D. and John Robertson, J.D., 1975. Commissioned Papers for the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research, The Belmont Report: Ethical Principles and Guidelines for the Protection of Human Subjects of Research, U.S. Government Printing Office, Washington, D.C., 1978.

60 Federal Register, Vol. 46, No. 18, January 26, 1981, pp. 83728373.

61 Ibid. At the same time, other changes were made in the Belmont Reports proposed definition. In response to other concerns about the breadth of the proposed definition of research, DHHS inserted the term living into the definition of human subject to clarify that historical and biographical research were not covered. The final regulation also used private to modify information to make it clear that the regulations are applicable only to research which involves intervention or interaction with an individual or identifiable private information. Private information was clearly defined, with the following concluding comment: It is expected that this definition exempts from the regulations nearly all library-based political, literary and historical research, as well as purely observational research in most public contexts, such as behavior on the street and in crowds.

62 Expedited reviews cost $200 each. Independent Review Consulting, Inc., Institutional Review Board, Fee Schedule, 1997.

63 Final Report: Advisory Committee on Human Radiation Experiments, Commentary following Finding 22, Chapter 17, 1995.

64 Public Health Service Act, as amended by the Health Research Extension Act of 1985, Public Law 99-158, November 20, 1995.

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THE HISTORY, FUNCTION, AND FUTURE OF INDEPENDENT INSTITUTIONAL REVIEW BOARDS

Erica Heath

Independent Review Consulting, Inc.

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I. Executive Summary

The National Bioethics Advisory Commission (NBAC) has requested information about the philosophical and practical issues related to the role of independent institutional review boards (IRBs) in the current medical research community. This paper provides a working definition of independent IRBs. It describes their role within a broader framework of protections for human subjects. It addresses their history and development and describes the strengths and weaknesses of independent IRBs.

     As the term suggests, an independent IRB is a subset of a wider universe of IRBs; as such, it exists for the same purpose as all IRBsto review clinical research plans to ensure that adequate human subject protections have been incorporated. An independent IRB is subject to the same federal and state regulatory requirements applicable to all IRBs. Although it is difficult to produce a single definition of an independent IRB, due to the diversity of these entities, the following description is offered:

An independent IRB is one that reviews research for the purpose of assuring adequate protection of human subjects for entities that generally are not part of the same organizational structure as the IRB.

     Beginning in 1966, the federal government established requirements for protection of human subjects in institutions receiving federal funding. Centers conducting research entered agreements called Multiple Project Assurances (MPAs) with the Department of Health, Education, and Welfare (DHEW) through the Office for Protection from Research Risks (OPRR) (now the Office for Human Research ProtectionsOHRP).1 That the system was decentralized and was institutionally based is a reflection of the organization of research in that era. Academic medical centers were the locus of most research, research was predominantly single site, and most sites acted independently and interacted rarely.

     Over time, the research landscape has dramatically changed. In order to meet the demands of the new research environment, independent IRBs were born. The Food and Drug Administrations (FDAs) recognition that IRBs need not be located in an institutional setting created the first gateway for the use of independent IRBs throughout the 1980s. In 1995, OPRR began granting Single Project Assurances (SPAs) for projects reviewed by independent IRBs.

     Although the greatest need for independent IRBs remains outside the academic and hospital settings, independent IRBs have been used in many institutional settings including institutions that contract for outside review, institutional IRBs that accept the review of an independent IRB for multicenter studies, and institutions that use an independent IRB as a bridge to an improved internal review system.

     The benefits of independent IRBs continue to emerge: 1) independent IRBs fill a void by providing review to centers that might not otherwise have adequate IRB review, 2) independent IRBs have provided significant advantages in reviewing multisite research, 3) independent IRBs provide structured and efficient reviews, and 4) independent IRBs independence from the institutions for which they provide reviews frees them from the conflicts of interest associated with the institutions.

     Several perceived weaknesses have been identified as inherent in the structure of independent IRBs: 1) conflict of interest, 2) the possibility of shopping for IRB approval, and 3) lack of physical presence at the performance site. All of these concerns can be addressed through proper organizational structure and/or implementation of standard operating procedures.

     Because independent IRBs evolved out of a changing research environment, they are well suited to ensure that the needs of investigators, sponsors, and government regulators are met, while maintaining human subject protection.

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II. Independent IRBs Defined

A. IRBs in General

Before discussing the definition of an independent IRB, a general review of the essentials of an IRB is offered along with a review of some of the elements that all IRBs share and some elements that distinguish them:

and practice. This diversity is reflected in the number of names used to describe them (see Exhibit 1). Many of these adjectives can apply to one IRB or to several. A few examples follow:

Exhibit 1

Various adjectives, illustrative of the wide variety among IRB form and function, have been used to characterize IRBs:

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B. Similarities Among IRBs

The class of independent IRB is a subset within this general description of IRBs. Similarities exist between independent and institutional IRBs:

n
  
They exist for the same purposes: protection of human subjects of research.
n
  
They are guided by the same federal and state legal and ethical requirements, including both the Department of Health and Human Services (DHHS) and FDA regulations, as applicable.
n
  
They must have an organizational structure and written operating policies and procedures.
n
  
Their membership composition must meet the same regulatory standards.
n
  
They are subject to external audit by both FDA and OPRR (for SPA approved work).
C. Differences Among IRBs

Although there is a splendid variety within both independent and institutional structures for IRBs, there are several key features that distinguish the independent IRB:

     Just as an institutional IRB is part of an institution, an independent IRB is always a part of an organization that can be defined as an institution within the Common Rule.3 As defined, institutions of either type may be large or small, for-profit or nonprofit, professional or volunteer, professional medical practices, hospitals, nonprofit foundations, or contract research organizations. The independent IRB may also be part of a corporation unaffiliated with any other organization.

D. A Suggested Definition

The definition suggested here is intended to highlight both the similarities and differences. An independent IRB is

an IRB...which reviews research...for the purpose of assuring adequate protection of human subjects...for entities that generally are not part of the same organizational structure as the IRB.

     This definition suggests that an independent IRB performs the same function as any IRB. It reviews research for the same purpose as other IRBs. The defining difference is that the institution conducting the research and the institution supporting the IRB are different organizational entities.4

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III. An Environment Engendering Independent IRBs

The traditional institutional IRB was created in response to the research environment. When that environment changed it was necessary to create a legal and ethical alternative. The independent IRB arose to fill the need created by this change.

A. The Early Regulation of Medical Research and the Public Health Service Response

As long as man has been interested in scientific learning, people have conducted experiments to determine how the human mind and body respond to certain stimuli, from machinery and electricity to sounds and chemicals. Gradually such experiments evolved from single anecdotal studies to more formal experiments, to research in which groups of subjects were studied in an organized manner to systematically answer a broader question.

     Many research studies have lead to groundbreaking discoveries that have benefited humankind. The public has known, however, that these research projects also have the capacity to damage human participants and may present unacceptable risks to society as a whole. This negative side is evidenced by the horrific experiments conducted during World War II or by the later revelations concerning American studies such as those performed at the Jewish Chronic Disease Hospital5 or at Willowbrook State Hospital.6 In 1966, an article by Henry Beecher7 brought prominent attention to human research abuses in medical schools and hospitals, citing 22 cases involving highly questionable ethics.

     In recognition of the potential risks to human subjects inherent in scientific research, and knowing that the U.S. government was actively funding such research, U.S. Surgeon General William Stewart issued an important policy statement on February 8, 1966,8 related to the administration of federal grants and contracts supporting research, development, and related activities involving human subjects. Key elements of this policy were:

     The first assurances, issued in 1966, were very short and dealt only with fundamental issues. Later assurances have become complex and reflect many subsequent interpretations of the initial basic premises.

     The concepts outlined in Surgeon General Stewarts policy statement were refined over the next few years, and by 1971 they had made their way into the Grants Administration Manual of DHEW. The concepts were made available to the newly formed reviewing committees through distribution of a pamphlet readers called The Little Yellow Book.9 This pamphlet instructed that studies involving human subjects needed committee review. The review was to address three concerns: 1) whether benefits of the study exceeded risks, 2) whether the rights, safety, and welfare of subjects were protected, and 3) whether adequate provisions were made to obtain informed consent. Human subjects were persons placed at risk by their participation. (Interestingly, if an investigator decided that his subjects were not at risk, review was not required.) In May 1974, the first regulations requiring IRB review for protection of human subjects were issued as Title 45 of the Code of Federal Regulations (CFR), Part 46. For the first time the committees conducting research reviews became known as institutional review boards.10 The new regulations provided revised definitions of research, human subject, and assurance, provided criteria for IRB review, and expanded the elements of informed consent.

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In June of 1974, the National Research Act (Public Law 93-348) was signed into law creating the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research (National Commission). The National Commission was charged with making recommendations particularly about inclusion of various vulnerable populations in research. Its best-remembered report dealt with the ethical problems precepts underlying Western research. The National Commissions work resulted in the Belmont Report and in an affirmation of the basic requirements of the IRB system.

     Over time, the regulatory system evolved to include more types of research and to increase the importance of IRBs and the amount of work they were asked to perform. Social and behavioral research funded by the PHS was brought within the jurisdiction of the regulation and IRB review.

     Critically, an increasing number of assurances contained a statement that all research conducted within the institution must be reviewed using the single standard set forth in 45 CFR 46. This meant that, in an institution with an MPA, all studies were reviewed under 45 CFR 46 regardless of the source of funding or other regulatory controls.

     Other federal agencies were actively developing human subject protection programs, most of which adopted the same basic requirements involving IRB review and informed consent. However, each agency had slightly different requirements. For instance, the Department of the Navy required signatures of all IRB members on approval letters, while the Department of Energy had other elements of consent. FDA requirements were more voluntary and did not require consent if the doctor determined it was not in the subjects best interest. This conflicting hodgepodge of regulations caused substantial confusion.

     In 1978, the National Commission concluded that IRBs should be governed by uniform federal regulations.11 This very well received recommendation eventually resulted first in the 1981 regulation, which harmonized FDA with DHHS, and then in the 1991 issuance of the Common Rule.12 The National Commission also recognized that flexibility must be maintained in creating IRBs. For example, the National Commission explained that an IRB may be located in the institution where the research is being conducted or outside of it and may review research for one institution only or for several institutions.13

B. The FDA Response

Although the FDA was an agency within DHEW and later DHHS, its history with regard to human subjects protection developed independently of its sister agency, the National Institutes of Health. FDA regulations developed in response to other incidents, congressional actions, and its own regulatory responsibility.

     The FDAs history of regulation of human subjects research started in 1962 with the Kefauver Amendment to the Food, Drug, and Cosmetic Act. This act included the requirement that informed consent should be required unless it was deemed not to be feasible, or it was contrary to the best interests of such human beings.14 In 1971, the FDA required IRB review if the study was to be conducted with institutionalized subjects or in an institution with an IRB; for sites with no IRB, IRB review was not required.15

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     FDA regulations requiring IRB review for FDA regulated products were first published on January 27, 1981 (see Exhibit 2). They closely resembled the DHEW regulations in the description of an IRB and in the review criteria used.

Exhibit 2

Physicians who practice in their offices and who wish to conduct clinical investigations for a sponsor or as sponsor-investigators are required to comply with these regulations to obtain a research permit. The agency recognizes, however, that in some instances such physicians (and other health professionals who would otherwise qualify for a research permit) may not be affiliated with an institution or have direct access to an IRB. In those instances, FDA advises that several options are available to the physician. A sponsor-investigator who is unaffiliated with an institution with an IRB can comply with this requirement by obtaining review at an institution whose IRB conforms with the regulations or by submitting the research proposal to an IRB created under the auspices of a local or State government health agency, a community hospital, a private or public medical school, a county or State medical society, the State medical licensing board or an IRB created by the sponsor.

46 Fed. Reg. 8962 (Jan. 27, 1981) Preamble comment #17

     Recognizing that many products were tested at sites without an IRB, FDA nevertheless required IRB review for all studies. In the preamble to the 1981 regulations, FDA recognized the gap in coverage by IRBs and suggested that local governments, medical societies, or the sponsor itself might form IRBs for these studies.

     FDA accepted the Common Rule on June 18, 1991, although the agency published deviations from the Common Rule for purposes of meeting its statutory mandate to regulate health-related products.16 While the regulations presumed that clinical investigators were affiliated with medical institutions that had an IRB, the FDA recognized that there may be circumstances for which there was no IRB available and that contracting with an IRB might be possible.

C. The Changing World of Medical Research

When Dr. Stewart issued his policy statement in 1966, research was conducted typically by a single investigator working in an academic medical center on a federally funded project, with a small number of human subjects. Most exceptions to single-site studies were federally funded cancer studies carried out by groups such as the Eastern Oncology Group or the Pediatric Oncology Group, which conducted multicenter studies centered in academic centers. The world of research was poised for change. Several events transformed the face of research in the United States.

     First, Medicares introduction of Disease Related Groups as a basis for reimbursement led to a decreasing number of hospital admissions, shortened hospital stays, and a resulting lower hospital census. This led to a corresponding increased need for delivery of ambulatory care and thus for research in that setting.

     Second, federal legislation imposed the requirement that sponsors provide evidence that their pharmaceutical products were effectiveevidence that would be provided primarily through human research studies.17 The number of human subjects needed to show efficacy grew quickly. Large multicenter trials became more standard. This led to discontent with the inconsistency associated with review of one protocol by many IRBs under the decentralized IRB system.

     A third change was environmental. Specialty equipment and medical and scientific expertise could increasingly be found in community settings. Laboratory tests could be performed quickly and efficiently in-house. Magnetic resonance imaging and other diagnostic tests became available at for-profit diagnostic centers. Other business tools, such as courier services, fax and modem transmission, and affordable computers, allowed the placement of research studies in smaller, less costly, and more responsive community medical centers.

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     Fourth, academic institutions oriented to research covered by government grants were often not attuned to the needs of the pharmaceutical industry for timely and validated study data. Some institutions were more intrigued with basic research than in conducting the directed work necessary to support a drug sponsors protocol. Pharmaceutical sponsors, wishing to achieve speedy reviews of proposed studies and uniformity among many study sites, often perceived the academic community as impractical in producing data.

     Gradually, more pharmaceutical studies were placed in secondary care hospitals and, eventually, in private medical practices. It was no longer considered mandatory, or even wise, to test a pain reliever, a metered-dose inhaler, or a vaccine in expensive large academic medical centersespecially if the eventual users would be treated in ambulatory settings.

     In 1991, with most federal agencies adopting the Common Rule, the FDA adopted similar regulations under Title 21 CFR, Parts 50 and 56 to provide protections for human subjects participating in commercially funded research. Although the FDA adopted most of the Common Rules research review requirements, it also crafted carefully designed provisions that deviated from the Common Rule. These deviations from the Common Rule created regulations that would better fit FDAs mission to protect the public health in reviewing and approving new pharmaceuticals, medical devices, and related technologies. The deviations accommodated diverse medical settings regulated through control of the product rather than study funding and were particularly suited to research intended to support product marketing applications.

     With all of these changes, new means of addressing research review requirements were necessary. Investigators who were asked to conduct studies in community settings found little infrastructure available. Services available in an academic environment were nonexistent outside of that environment. There was no investigator training, little information on accounting or budgeting issues, little available liability insurance, and few trained coordinators. There were few resources sufficient to create or manage an internal IRB. Moreover, institutionally based IRBs generally were unwilling or unable to review clinical studies outside of their particular institution. The chronic problem of under-resourced IRBs combined with liability concerns led to courtesy reviews being offered only rarely by institutional boards to community-centered studies.

     As previously stated, the FDA acknowledged this problem in 1981 when it promulgated regulations on the protection of human subjects in research. It anticipated that medical societies and medical boards would step forward to create regional boards but acknowledged that other solutions were possible.18 In reaction to the changes in the medical research environment, the community of independent IRBs was born.

IV. The Development of Independent IRBs

Between the late 1960s and today, many independent IRBs were established19 (see Exhibit 3) to meet the needs of the changing research environment. They developed in response to different environments. They served a broad range of needs, from the review of food ingredient proposals, to psychological studies, to physiological and surgical protocols. Each was unique.

Exhibit 3. Founding Dates        

           
1968 Western IRB 1985 Essex IRB 1993 Chesapeake
1981 St. Davids 1985 RCRC 1996 Copernicus
1983 Biomed 1986 Ethical Review Board 1999 IntegReview
1983 Schulman Associates IRB 1989 New England 2000 Goodwyn.com
1984 IRC Independent Review 1991 Quorum    
  Consulting        

           
           
      E-9    

     Although no accurate count is currently possible due to differing definitions and the lack of any central counting method for IRBs, a list of some independent IRBs that review FDA regulated studies is included as Appendix A.

     The FDAs recognition that IRBs need not be located in an institutional setting created the first gateway for the use of independent IRBs. Thus, between 1981 and 1995 independent IRBs primarily were used to review FDA-regulated clinical studies in small clinics, community hospitals, and private practices. Today, independent IRBs are responsible for review of a wide variety of studies conducted in a wide variety of settings.

     For many reasons, including the increase in regulatory requirements for premarket clinical testing and the market exclusivity granted to drug sponsors for such tests, the number of research studies funded both by public and private sources has increased dramatically.20 As a result, multisite studies involving thousands of human subjects have become much more common. Because independent IRBs are not limited in their review to a single site, they have proven their value in the area of multicenter or national trials.

     The greatest need for independent IRB review remains outsid