It is the policy of UTHSC-H that research involving cognitively impaired persons shall be reviewed by a member who is knowledgeable in ethical, clinical and psychosocial issues concerning research involving these subjects.
UTHSC-H will follow the Texas Health & Safety Code - Chapter 313. Consent To Medical Treatment Act for research consent matters unless clearly inapplicable because there is no applicable Texas law specific to research consent.
If an adult patient of a home and community support services agency or in a hospital or nursing home is comatose, incapacitated, or otherwise mentally or physically incapable of communication, an adult surrogate from the following list, in order of priority, who has decision-making capacity, is available after a reasonably diligent inquiry, and is willing to consent to medical treatment on behalf of the patient may consent to medical treatment on behalf of the patient:
a. the patient's spouse;
b. an adult child of the patient who has the waiver and consent of all other qualified adult children of the patient to act as the sole decision-maker;
c. a majority of the patient's reasonably available adult children;
d. the patient's parents; or
e. the individual clearly identified to act for the patient by the patient before the patient became incapacitated, or the patient's nearest living relative.
f. Any dispute as to the right of a party to act as a surrogate decision-maker may be resolved only by a court of record having jurisdiction under Chapter V, Texas Probate Code.
g. Any medical treatment consented to under this section must be based on knowledge of what the patient would desire, if known.
h. Notwithstanding any other provision of this chapter, a surrogate decision-maker may not consent to:
i. voluntary inpatient mental health services;
ii. electro-convulsive treatment; or
iii. the appointment of another surrogate decision-maker.
When the research is being conducted outside Texas, CPHS will work with the local IRB to determine who can serve as a legally authorized representative under the applicable state law. If UTHSC-H is not relying on a local IRB to review the research being conducted outside of Texas, the investigator should submit documentation as to who is considered a legally authorized representative in the particular state.
Review Process – CPHS will review the proposed research and ensure that the conditions set forth in this policy and procedures are met. The research proposal may be reviewed by exempt, expedited or by the full committee process according to UTHSC-H policies and procedures. CPHS shall consider the appropriateness of enrolling cognitively impaired persons in research. Besides the usual criteria for review of research outlined in policy and procedure on Initial Review, CPHS shall also consider the following:
Degree of Risk – Research that presents more than minimal risk should involve cognitively impaired persons only when the research holds prospects of direct benefit to these individuals. A minor increase over minimal risk may be permitted in research involving institutionalized individuals only where research is designed to evaluate an intervention of foreseeable benefit to their care. If a research study poses more than minimal risk and no prospect of direct benefit to the individuals, CPHS should obtain advice from experts regarding the appropriateness of the research study.
Selection of Subjects – Research involving persons whose autonomy is compromised by disability or restraints on their personal freedom should bear some direct relationship to their condition or circumstances. The researchers should not choose persons who are institutionalized as a convenient sample for studies that bear no relation to their situation.
Limiting Risks – CPHS should ensure the protocol includes a description of appropriate psychological or medical screening criteria to prevent or reduce adverse reactions to the therapeutic and research procedures. When appropriate CPHS might require other health care providers involved in the care of these patients to be consulted to ensure that the research will not be detrimental to ongoing therapeutic regimens.
Assessing Competence - As a general rule, all adults, regardless of their diagnosis or condition, should be presumed to be competent to consent unless there is evidence of a serious mental disability that would impair reasoning or judgment. Even those who do have a diagnosed mental disorder may be perfectly able to understand the concept of being a research volunteer, and capable of consenting to or refusing participation. Mental disability alone should not disqualify a person from consenting to participate in research; rather, there should be specific evidence of individuals’ incapacity to understand and to make a choice before they are deemed unable to consent.
Documenting Capacity – For all research, regardless of study population, the person who obtains the subjects consent must determine that the person has sufficient capacity to give consent. This is documented by the signature in the consent form of the person obtaining consent.
In research that involves cognitively impaired persons, CPHS shall consider the need for independent assessment of capacity. CPHS may set qualifications for the person making assessment such as requiring a psychiatrist or geriatrician to make this assessment. The independent assessment should be documented by a formal note that is dated and signed.
Consent in Research Involving Cognitively Impaired Persons – In general, informed consent is required or waived according to the policy and procedure on Informed Consent. Consent may be sought from legally authorized representative with prior CPHS approval.
CPHS shall consider whether investigators must solicit prospective subjects’ assent (i.e., the willing and, to the extent possible, knowledgeable participation of those unable to give legally valid consent) in addition to the permission by the legally authorized representative.
Persons who are Institutionalized – When the research poses more than minimal risk and has no prospect of direct benefit to the individuals -
a. Court appointed guardian may consent on behalf of the persons formally adjudged incompetent.
b. Officials of the institution in which incompetent patients reside (even if they are the patient’s legal guardian) are not generally considered appropriate, since their supervisory duties may give rise to conflicting interests and loyalties.
c. Investigators must assess if conflicting interests exist for the legally authorized representative due to financial pressures, emotional distancing, or other ambivalent feelings common in such circumstances.
Texas state law specifically addresses research in patients who were admitted involuntarily to a mental health facility, but who have requested voluntary status. For these patients, Sec.574.154 requires that the patient may not participate in a research program in the inpatient mental health facility unless:
a. the patient provides written consent to participate in the research program under a protocol that has been approved by the facility ’s institutional review board; and
b. the institutional review board specifically reviews the patient ’s consent under the approved protocol. Added by Acts 2001, 77th Leg., ch. 1309, Sec. 1, eff. June 16, 2001.
Exceptions - As a general principle, incapable persons should not be involved in research that can be conducted with capable subjects. Inclusion of cognitively impaired persons may be permitted by CPHS if such research provides societal benefit, particularly one that is not otherwise available outside of the research setting.
1. 45 CFR 46.111(b)
2. 21 CFR 56.111(b)
3. 21 CFR 50.3(l)
REFERENCE TO OTHER POLICIES
1. Initial Review
1. Initial Application Form Panel – Research Involving Cognitively Impaired Persons
Research Involving Cognitively Impaired
1 Aug 2008
1 Jan 2009
1 Aug 2011