Subpart A -- General Provisions
50.1 Scope
50.3 Definitions
Subpart B -- Informed Consent of Human Subjects
50.20 General requirements for informed consent
50.23 Exception from general requirements
50.25 Elements of informed consent
50.27 Documentation of informed consent
Subpart A -- General Provisions
§ 50.1 Scope.
(a) This part applies to all clinical investigations regulated
by the Food and Drug Administration under sections 505(i), 507(d), and
520(g) of the Federal Food, Drug, and Cosmetic Act, as well as clinical
investigations that support applications for research or marketing permits
for products regulated by the Food and Drug Administration, including food
and color additives, drugs for human use, medical devices for human use,
biological products for human use, and electronic products. Additional
specific obligations and commitments of, and standards of conduct for,
persons who sponsor or monitor clinical investigations involving particular
test articles may also be found in other parts (e.g.,
parts 312 and 812).
Compliance with these parts is intended to protect the rights and safety
of subjects involved in investigations filed with the Food and Drug Administration
pursuant to sections 406, 409, 502, 503, 505, 506, 507, 510, 513-516, 518-520,
721, and 801of the Federal Food, Drug, and Cosmetic Act and sections 351
and 354-360F of the Public Health Service Act.
(b) References in this part to regulatory sections of the Code
of Federal Regulations are to chapter I of title 21,unless otherwise noted.
HISTORY:
[45 FR 36390, May 30, 1980; 46 FR 8979, Jan. 27, 1981; 59 FR 14366,
March 28, 1994]
§ 50.3 Definitions
As used in this part:
(a) Act means the Federal Food, Drug, and Cosmetic Act, as amended
(secs. 201--902, 52 Stat. 1040 et seq. as amended (21 U.S.C. 321--392)).
(b) Application for research or marketing permit includes:
- A color additive petition, described in part 71
- A food additive petition, described in parts 171 and 571
- Data and information about a substance submitted as part of the procedures for establishing that the substance is generally recognized as safe for use that results or may reasonably be expected to result, directly or indirectly, in its becoming a component or otherwise affecting the characteristics of any food, described in §§ 170.30 and 570.30.
- Data and information about a food additive submitted as part of the procedures for food additives permitted to be used on an interim basis pending additional study, described in § 180.1.
- Data and information about a substance submitted as part of the procedures for establishing a tolerance for unavoidable contaminants in food and food-packaging materials, described in section 406 of the act.
- An investigational new drug application, described in part 312 of this chapter.
- A new drug application, described in part 314.
- Data and information about the bioavailability or bioequivalence of drugs for human use submitted as part of the procedures for issuing, amending, or repealing a bioequivalence requirement, described in part 320.
- Data and information about an over-the-counter drug for human use submitted as part of the procedures for classifying these drugs as generally recognized as safe and effective and not misbranded, described in part 330.
- Data and information about a prescription drug for human use submitted as part of the procedures for classifying these drugs as generally recognized as safe and effective and not misbranded, described in this chapter.
- Data and information about an antibiotic drug submitted as part of the procedures for issuing, amending, or repealing regulations for these drugs, described in § 314.300 of this chapter.
- An application for a biological product license, described in part 601.
- Data and information about a biological product submitted as part of the procedures for determining that licensed biological products are safe and effective and not misbranded, described in part 601.
- Data and information about an in vitro diagnostic product submitted as part of the procedures for establishing, amending, or repealing a standard for these products, described in part 809.
- An Application for an Investigational Device Exemption, described in part 812.
- Data and information about a medical device submitted as part of the procedures for classifying these devices, described in section 513.
- Data and information about a medical device submitted as part of the procedures for establishing, amending, or repealing a standard for these devices, described in section 514.
- An application for premarket approval of a medical device, described in section 515.
- A product development protocol for a medical device, described in section 515.
- Data and information about an electronic product submitted as part of the procedures for establishing, amending, or repealing a standard for these products, described in section 358 of the Public Health Service Act.
- Data and information about an electronic product submitted as part of the procedures for obtaining a variance from any electronic product performance standard, as described in § 1010.4.
- Data and information about an electronic product submitted as part of the procedures for granting, amending, or extending an exemption from a radiation safety performance standard, as described in § 1010.5.
(c) Clinical investigation means any experiment that involves a
test article and one or more human subjects and that either is subject
to requirements for prior submission to the Food and Drug Administration
under section 505(i), 507(d), or 520(g) of the act, or is not subject to
requirements for prior submission to the Food and Drug Administration under
these sections of the act, but the results of which are intended to be
submitted later to, or held for inspection by, the Food and Drug Administration
as part of an application for a research or marketing permit. The term
does not include experiments that are subject to the provisions of part
58 of this chapter, regarding nonclinical laboratory studies.
(d) Investigator means an individual who actually conducts a
clinical investigation, i.e., under whose immediate direction the test
article is administered or dispensed to, or used involving, a subject,
or, in the event of an investigation conducted by a team of individuals,
is the responsible leader of that team.
(e) Sponsor means a person who initiates a clinical investigation,
but who does not actually conduct the investigation, i.e., the test article
is administered or dispensed to or used involving, a subject under the
immediate direction of another individual. A person other than an individual
(e.g., corporation or agency) that uses one or more of its own employees
to conduct a clinical investigation it has initiated is considered to be
a sponsor (not a sponsor-investigator), and the employees are considered
to be investigators.
(f) Sponsor-investigator means an individual who both initiates
and actually conducts, alone or with others, a clinical investigation,
i.e., under whose immediate direction the test article is administered
or dispensed to, or used involving, a subject. The term does not include
any person other than an individual, e.g., corporation or agency.
(g) Human subject means an individual who is or becomes a participant
in research, either as a recipient of the test article or as a control.
A subject may be either a healthy human or a patient.
(h) Institution means any public or private entity or agency
(including Federal, State, and other agencies). The word facility as used
in section 520(g) of the act is deemed to be synonymous with the term institution
for purposes of this part.
(i) Institutional review board (IRB) means any board, committee,
or other group formally designated by an institution to review biomedical
research involving humans as subjects, to approve the initiation of and
conduct periodic review of such research. The term has the same meaning
as the phrase institutional review committee as used in section 520(g)
of the act.
(j) Test article means any drug (including a biological product
for human use), medical device for human use, human food additive, color
additive, electronic product, or any other article subject to regulation
under the act or under sections 351 and 354-360F of the Public Health Service
Act (42 U.S.C. 262 and 263b-263n).
(k) Minimal risk means that the probability and magnitude of
harm or discomfort anticipated in the research are not greater in and of
themselves than those ordinarily encountered in daily life or during the
performance of routine physical or psychological examinations or tests.
(l) Legally authorized representative means an individual or
judicial or other body authorized under applicable law to consent on behalf
of a prospective subject to the subject's particpation in the procedure(s)
involved in the research.
(m) Family member means any one of the following legally competent
persons: Spouse; parents; children (including adopted children); brothers,
sisters, and spouses of brothers and sisters; and any individual related
by blood or affinity whose close association with the subject is the equivalent
of a family relationship.
HISTORY:
[45 FR 36390, May 30, 1980, as amended at 46 FR 8950, Jan. 27, 1981;
54 FR 9038, Mar. 3, 1989; 56 FR 28028, June 18, 1991; 61 FR 51498, 51528,
Oct. 2, 1996; 62 FR 39439, 39440, July 23, 1997]
Subpart B -- Informed Consent of Human Subjects
§ 50.20 General requirements for informed consent
Except as provided in §
50.23, no investigator may involve a human being as a subject in research
covered by these regulations unless the investigator has obtained the legally
effective informed consent of the subject or the subject's legally authorized
representative. An investigator shall seek such consent only under circumstances
that provide the prospective subject or the representative sufficient opportunity
to consider whether or not to participate and that minimize the possibility
of coercion or undue influence. The information that is given to the subject
or the representative shall be in language understandable to the subject
or the representative. No informed consent, whether oral or written, may
include any exculpatory language through which the subject or the representative
is made to waive or appear to waive any of the subject's legal rights,
or releases or appears to release the investigator, the sponsor, the institution,
or its agents from liability for negligence.
HISTORY:
[46 FR 8951, Jan. 27, 1981.]
§ 50.23 Exception from general requirements.
(a) The obtaining of informed consent
shall be deemed feasible unless, before use of the test article (except
as provided in paragraph (b) of this section),
both the investigator and a physician who is not otherwise participating
in the clinical investigation certify in writing all of the following:
- The human subject is confronted by a life-threatening situation necessitating the use of the test article.
- Informed consent cannot be obtained from the subject because of an inability to communicate with, or obtain legally effective consent from, the subject.
- Time is not sufficient to obtain consent from the subject's legal representative.
- There is available no alternative method of approved or generally recognized therapy that provides an equal or greater likelihood of saving the life of the subject.
(b) If immediate use of the test article
is, in the investigator's opinion, required to preserve the life of the
subject, and time is not sufficient to obtain the independent determination
required in paragraph (a) of this section in advance
of using the test article, the determinations of the clinical investigator
shall be made and, within 5 working days after the use of the article,
be reviewed and evaluated in writing by a physician who is not participating
in the clinical investigation.
(c) The documentation required in paragraph (a)
or (b) of this section shall be submitted to the
IRB within 5 working days after the use of the test article.
(d)
- The Commissioner may also determine that
obtaining informed consent is not feasible when the Assistant Secretary
of Defense (Health Affairs) requests such a determination in connection
with the use of an investigational drug (including an antibiotic or biological
product) in a specific protocol under an investigationalnew drug application
(IND) sponsored by the Department of Defense (DOD). DOD's request for a
determinationthat obtaining informed consent from military personnel is
not feasible must be limited to a specific militaryoperation involving
combat or the immediate threat of combat. The request must also include
a writtenjustification supporting the conclusions of the physician(s) responsible
for the medical care of the militarypersonnel involved and the investigator(s)
identified in the IND that a military combat exigency exists because ofspecial
military combat (actual or threatened) circumstances in which, in order
to facilitate the accomplishmentof the military mission, preservation of
the health of the individual and the safety of other personnel require
that aparticular treatment be provided to a specified group of military
personnel, without regard to what might be anyindividual's personal preference
for no treatment or for some alternative treatment. The written request
must alsoinclude a statement that a duly constituted institutional review
board has reviewed and approved the use of theinvestigational drug without
informed consent. The Commissioner may find that informed consent is not
feasibleonly when withholding treatment would be contrary to the best interests
of military personnel and there is noavailable satisfactory alternative
therapy.
- In reaching a determination under paragraph (d)(1)
of this section that obtaining informed consent is not feasible and withholding
treatment would be contrary to the best interests of military personnel,
the Commissioner will review the request submitted under paragraph (d)(1)
of this section and take into account all pertinent factors, including,
but not limited to:
- The extent and strength of the evidence of the safety and effectiveness of the investigational drug for the intended use;
- The context in which the drug will be administered, e.g., whether it is intended for use in a battlefield or hospital setting or whether it will be self-administered or will be administered by a health professional;
- The nature of the disease or condition for which the preventive or therapeutic treatment is intended; and
- The nature of the information to be provided to the recipients of the drug concerning the potential benefits and risks of taking or not taking the drug.
- The Commissioner may request a recommendation from appropriate experts before reaching a determination on a request submitted under paragraph (d)(1) of this section.
- A determination by the Commissioner that obtaining informed consent
is not feasible and withholding treatment would be contrary to the best
interests of military personnel will expire at the end of 1 year, unless
renewed at DOD's request, or when DOD informs the Commissioner that the
specific military operation creating the need for the use of the investigational
drug has ended, whichever is earlier. The Commissioner may also revoke
this determination based on changed circumstances.
HISTORY:
[46 FR 8951, Jan. 27, 1981, as amended at 55 FR 52817, Dec. 21, 1990]
§ 50.24 Exception from informed consent requirements for emergency research.
(a) The IRB responsible for the review,
approval, and continuing review of the clinical investigation described
in this section may approve that investigation without requiring that informed
consent of all research subjects be obtained if the IRB (with the concurrence
of a licensed physician who is a member of or consultant to the IRB and
who is not otherwise participating in the clinical investigation) finds
and documents each of the following:
- The human subjects are in a life-threatening situation, available treatments are unproven or unsatisfactory, and the collection of valid scientific evidence, which may include evidence obtained through randomized placebo-controlled investigations, is necessary to determine the safety and effectiveness of particular interventions.
- Obtaining informed consent is not feasible because:
- The subjects will not be able to give their informed consent as a result of their medical condition;
- The intervention under investigation must be administered before consent from the subjects' legally authorized representatives is feasible; and
- There is no reasonable way to identify prospectively the individuals likely to become eligible for participation in the clinical investigation.
- Participation in the research holds out the prospect of direct benefit to the subjects because:
- Subjects are facing a life-threatening situation that necessitates intervention;
- Appropriate animal and other preclinical studies have been conducted, and the information derived from those studies and related evidence support the potential for the intervention to provide a direct benefit to the individual subjects; and
- Risks associated with the investigation are reasonable in relation to what is known about the medical condition of the potential class of subjects, the risks and benefits of standard therapy, if any, and what is known about the risks and benefits of the proposed intervention or activity.
- The clinical investigation could not practicably be carried out without the waiver.
- The proposed investigational plan defines the length of the potential therapeutic window based on scientific evidence, and the investigator has committed to attempting to contact a legally authorized representative for each subject within that window of time and, if feasible, to asking the legally authorized representative contacted for consent within that window rather than proceeding without consent. The investigator will summarize efforts made to contact legally authorized representatives and make this information available to the IRB at the time of continuing review.
- The IRB has reviewed and approved informed consent procedures and an informed consent document consistent with § 50.25. These procedures and the informed consent document are to be used with subjects or their legally authorized representatives in situations where use of such procedures and documents is feasible. The IRB has reviewed and approved procedures and information to be used when providing an opportunity for a family member to object to a subject's participation in the clinical investigation consistent with paragraph (a)(7)(v) of this section.
- Additional protections of the rights and welfare of the subjects will be provided, including, at least:
- Consultation (including, where appropriate, consultation carried out by the IRB) with representatives of the communities in which the clinical investigation will be conducted and from which the subjects will be drawn;
- (ii) Public disclosure to the communities in which the clinical investigation will be conducted and from which the subjects will be drawn, prior to initiation of the clinical investigation, of plans for the investigation and its risks
and expected benefits;
- (iii) Public disclosure of sufficient information following completion of the clinical investigation to apprise the community and researchers of the study, including the demographic characteristics of the research population, and its results;
- Establishment of an independent data monitoring committee to exercise oversight of the clinical investigation; and
- (v) If obtaining informed consent is not feasible and a legally authorized representative is not reasonably available, the investigator has committed, if feasible, to attempting to contact within the therapeutic window the subject's family member who is not a legally authorized representative, and asking whether he or she objects to the subject's participation in the clinical investigation. The investigator will summarize efforts made to contact family members and make this information available to the IRB at the time of continuing review.
(b) The IRB is responsible for ensuring that procedures are in place
to inform, at the earliest feasible opportunity, each subject, or if the
subject remains incapacitated, a legally authorized representative of the
subject, or if such a representative is not reasonably available, a family
member, of the subject's inclusion in the clinical investigation, the details
of the investigation and other information contained in the informed consent
document. The IRB shall also ensure that there is a procedure to inform
the subject, or if the subject remains incapacitated, a legally authorized
representative of the subject, or if such a representative is not reasonably
available, a family member, that he or she may discontinue the subject's
participation at any time without penalty
or loss of benefits to which the subject is otherwise entitled. If
a legally authorized representative or family member is told about the
clinical investigation and the subject's condition improves, the subject
is also to be informed as soon as feasible. If a subject is entered into
a clinical investigation with waived consent and the subject dies before
a legally authorized representative or family member can be contacted,
information about the clinical investigation is to be provided to the subject's
legally authorized representative or family member, if feasible.
(c) The IRB determinations required by paragraph (a)
of this section and the documentation required by paragraph (e)
of this section are to be retained by the IRB for at least 3 years after
completion of the clinical investigation, and the records shall be accessible
for inspection and copying by FDA in accordance with §
56.115(b) of this chapter.
(d) Protocols involving an exception to the informed consent
requirement under this section must be performed under a separate investigational
new drug application (IND) or investigational device exemption (IDE) that
clearly identifies such protocols as protocols that may include subjects
who are unable to consent. The submission of those protocols in a separate
IND/IDE is required even if an IND for the same drug product or an IDE
for the same device already exists. Applications for investigations under
this section may not be submitted as amendments under §§
312.30
or 812.35
of this chapter.
(e) If an IRB determines that it cannot
approve a clinical investigation because the investigation does not meet
the criteria in the exception provided under paragraph (a)
of this section or because of other relevant ethical concerns, the IRB
must document its findings and provide these findings promptly in writing
to the clinical investigator and to the sponsor of the clinical investigation.
The sponsor of the clinical investigation must promptly disclose this information
to FDA and to the sponsor's clinical investigators who are participating
or are asked to participate in this or a substantially equivalent clinical
investigation of the sponsor, and to other IRB's that have been, or are,
asked to review this or a substantially equivalent investigation by that
sponsor.
HISTORY:
[61 FR 51498, 51528, Oct. 2, 1996]
§ 50.25 Elements of informed consent.
(a) Basic elements of informed consent. In seeking informed consent, the following information shall be provided to each subject:
- A statement that the study involves research, an explanation of the purposes of the research and the expected duration of the subject's participation, a description of the procedures to be followed, and identification of any procedures which are experimental.
- A description of any reasonably foreseeable risks or discomforts to the subject.
- A description of any benefits to the subject or to others which may reasonably be expected from the research.
- A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject.
- A statement describing the extent, if any, to which confidentiality of records identifying the subject will be maintained and that notes the possibility that the Food and Drug Administration may inspect the records.
- For research involving more than minimal risk, an explanation as to whether any compensation and an explanation as to whether any medical treatments are available if injury occurs and, if so, what they consist of, or where further information may be obtained.
- An explanation of whom to contact for answers to pertinent questions about the research and research subjects' rights, and whom to contact in the event of a research-related injury to the subject.
- A statement that participation is voluntary, that refusal to participate will involve no penalty or loss of benefits to which the subject is otherwise entitled, and that the subject may discontinue participation at any time without penalty or loss of benefits to which the subject is otherwise entitled.
(b) Additional elements of informed consent. When appropriate, one
or more of the following elements of information shall also be provided
to each subject:
- A statement that the particular treatment or procedure may involve risks to the subject (or to the embryo or fetus, if the subject is or may become pregnant) which are currently unforeseeable.
- Anticipated circumstances under which the subject's participation may be terminated by the investigator without regard to the subject's consent.
- Any additional costs to the subject that may result from participation in the research.
- The consequences of a subject's decision to withdraw from the research and procedures for orderly termination of participation by the subject.
- A statement that significant new findings developed during the course of the research which may relate to the subject's willingness to continue participation will be provided to the subject.
- The approximate number of subjects involved in the study.
(c) The informed consent requirements in these regulations are not
intended to preempt any applicable Federal, State, or local laws which
require additional information to be disclosed for informed consent to
be legally effective.
(d) Nothing in these regulations is intended to limit the authority
of a physician to provide emergency medical care to the extent the physician
is permitted to do so under applicable Federal, State, or local law.
HISTORY:
[46 FR 8951, Jan. 27, 1981.]
§ 50.27 Documentation of informed consent.
(a) Except as provided in §
56.109(c), informed consent shall be documented by the use of a written
consent form approved by the IRB and signed and dated by the subject or
the subject's legally authorized representative at the time of consent.
A copy shall be given to the person signing the form.
(b) Except as provided in §
56.109(c), the consent form may be either of the following:
- A written consent document that embodies the elements of informed
consent required by §
50.25. This form may be read to the subject or the subject's legally
authorized representative, but, in any event, the investigator shall give
either the subject or the representative adequate opportunity to read it
before it is signed.
- A short form written consent document stating that the elements
of informed consent required by §
50.25 have been presented orally to the subject or the subject's legally
authorized representative. When this method is used, there shall be a witness
to the oral presentation. Also, the IRB shall approve a written summary
of what is to be said to the subject or the representative. Only the short
form itself is to be signed by the subject or the representative. However,
the witness shall sign both the short form and a copy of the summary, and
the person actually obtaining the consent shall sign a copy of the summary.
A copy of the summary shall be given to the subject or the representative
in addition to a copy of the short form.
HISTORY:
[46 FR 8951, Jan. 27, 1981; 61 FR 57278, 57280, Nov. 5, 1996.]
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