September 2020

Informed Consent

It is the policy of the Organization that no one may involve a human being as a participant in research or in a clinical investigation unless the investigator has obtained IRB approval and, when required by the IRB, that person’s legally effective informed consent. The JHM IRBs may alter or waive the requirement of informed consent under the Department of Health and Human Services (DHHS) regulations governing human subject research [45 CFR 46.116]. The Food and Drug Administration (FDA), though its regulations have not yet been revised, has issued formal guidance indicating that it too will adhere to the DHHS criteria for waiver or alteration pending regulatory revisions. If the participant is an adult who is unable to consent for him/herself, the investigator must describe the process of evaluating the individual’s capacity to provide consent, and if that capacity is lacking in a subject, must obtain informed consent from a legally authorized representative in accordance with State law. If the participant is a minor, the investigator must describe the parental permission and assent process in accordance with federal and state law.

Informed Consent Process

The JHM IRBs must review the proposed consent process.  Investigators must seek consent under such circumstances that provide the prospective participant with sufficient time and opportunity to consider whether or not to participate.  The JHM IRB’s evaluation of the investigator’s proposed participant selection/recruitment process and informed consent process will include:

• Considering the capacity of the participant to make an independent and voluntary informed decision whether or not to participate in a study;
• Reviewing who will obtain consent and under what circumstances;
• Determining how the investigator will assess the understanding of the participant; and,
• Deciding whether consent will be documented.

The JHM IRB must judge the information to be presented to a potential participant in a written or oral form to be understandable to the participant or the participant’s legally authorized representative.  The informed consent may not include any language which waives, or appears to waive, any of the participant’s legal rights, or releases or appears to release the parties to the research from liability for negligence.

Informed Consent Documentation

The content of the written information provided to the potential participant must include the elements outlined in 45 CFR 46.116(b) and, if subject to FDA regulations, 21 CFR 50.25(a), and when appropriate, the additional elements provided in 45 CFR 46.116(c) and 21 CFR 50.25(b). The IRB will review all documents that are part of the informed consent process. If a standard informed consent document is used, the Organization requires use of standard boilerplate language in consent forms. The standard boilerplate language includes:

1. the HIPAA Privacy Authorization, and
2. What other things should you know about this research study” including:

• a description of the IRB;
• contact information for questions about the study;
• instructions about who to call if injured or ill as a result of being in the study;
• a statement concerning ownership of data, tissue, blood, and samples collected in the study;
• an explanation about the “Organizations” of Johns Hopkins;
• a provision explaining significance of the subject’s signature on the consent form; and
• relevant signature pages.

The JHM IRB approved consent document(s) will have an approval date, but will not include an expiration date. The approval for the consent document will last the life of the study, or until it is amended – whichever comes first. Only copies of IRB-approved documents may be presented to participants.

Short Form Documentation of Informed Consent

The federal regulations under 45 CFR 46.117(b)(2) and 21 CFR 50.27(b)(2) permit the use of a short form consent document stating that the required informed consent elements have been presented to the subject or the subject’s legally authorized representative (LAR) orally, with a witness present. The witness must be fluent in both English and the language of the participant. Additionally:

• The participant or the participant’s LAR must sign and date the short form consent;
• The witness must sign and date both the full consent form and the short form;
• The consent designee must sign and date the full consent form;
• The consent designee must give to the participant or the representative:
• A copy of the consent form and
• A copy of the short form.

OHSR has several IRB-approved short form consents posted on the JHM IRB website.  For a short form consent in a language that has not been approved by the JHM IRB:

• The investigator must prepare:

• The IRB must approve the submitted short form.

The witness to the consent process may also be the translator of the short form.  If, however, the translator is the PI or a study team member, that individual may not also serve as the witness, who must be unaffiliated with the study.

Waiver or Alteration of Informed Consent or Documentation of Informed Consent

The IRB may for some or all participants, waive the requirement to sign a written consent document if the IRB makes the following determinations under DHHS regulations 45 CFR 46.117(c) and documents them with protocol specific findings justify those determinations:

• That the only record linking the subject and the research would be the consent document
• The principal risk would be potential harm resulting from a breach of confidentiality.
• Each subject will be asked whether the subject wants documentation linking the subject with the research, and the subject’s wishes will govern
• That the research presents no more than minimal risk of harm to subjects
• It involves no procedures for which written consent is normally required outside of the research context
• If the subjects or legally authorized representatives are members of a distinct cultural group or community in which signing forms is not the norm, that the research presents no more than minimal risk of harm to subjects and provided there is an appropriate alternative mechanism for documenting that informed consent was obtained

For FDA-regulated research, the IRB may for some or all participants, waive the requirement to sign a written consent document if the IRB makes the following determinations under 21 CFR 56.109(c) and documents them with protocol specific findings justify those determinations:

• That the research presents no more than minimal risk of harm to subjects
• It involves no procedures for which written consent is normally required outside the research context

The IRB is authorized to waive documentation for either the participant, or the adult participant's legally authorized representative, or waive parental permission for research involving children.

Where the criteria align with the DHHS Common Rule requirements, the IRB may for some or all participants waive the consent requirement under current FDA guidance. Please see: IRB Waiver or Alteration of Informed Consent for Clinical Investigations Involving No More Than Minimal Risk to Human Subjects: Guidance for Sponsors, Investigators, and Institutional Review Boards.

The IRB may approve waiver or alteration of the consent procedure, or waive the requirement to obtain informed consent, if the IRB makes the following determinations and documents them with protocol specific findings to justify those determinations:

• The research involves no more than minimal risk to the subjects;
• The waiver or alteration will not adversely affect the rights and welfare of the subjects;
• The research could not practicably be carried out without the waiver or alteration; and
• If the research involves using identifiable private information or identifiable biospecimens, the research could not practicably be carried out without using such information or biospecimens in an identifiable format;
• Whenever appropriate, the subjects or legally authorized representatives will be provided with additional pertinent information after participation.

The IRB may not waive the consent process for any research to be conducted under DoD regulations where the research participant meets the DoD definition of an ‘experimental subject.” A waiver of the consent process for such DoD regulated research requires permission of the Secretary of Defense.

For research subject to Department of Education regulations, the IRB will follow the requirements of the Family Educational Rights and Privacy Act (FERPA) when considering whether it may grant exceptions to parental/student consent to release of records for research.

Research Data Retention

• When a subject withdraws from a study, the data collected on the subject to the point of withdrawal remains part of the study database and may not be removed.  The consent document cannot give the subject the option of having data removed.

• The investigator may ask a subject who is withdrawing whether the subject wishes to provide continued follow-up and further data collection subsequent to his or her withdrawal from the interventional portion of the study.  Under this circumstance, the discussion with the subject must distinguish between study-related interventions and continued follow-up of associated clinical outcome information, such as medical course or laboratory results obtained through noninvasive chart review, and address the maintenance of privacy and confidentiality of the subject’s information.

• The investigator must obtain the subject’s informed consent for this limited participation in the study (assuming such a situation was not described in the initial consent form).  The IRB must approve the consent document.

• If a subject withdraws from the interventional portion of a study and does not consent to continued follow-up of associated clinical outcome information, the researcher must not access for purposes related to the study the subject’s medical record or other confidential records requiring the subject’s consent.  However, an investigator may review study data related to the subject collected prior to the subject’s withdrawal from the study, and may consult public records, such as those establishing survival status.