Participants with Impaired Decision-Making

If your research includes cognitively impaired adults, or adults with potentially absent, diminished or fluctuating capacity to consent, review the HRP 417-CHECKLIST-Cognitively Impaired Adults to see the categories of research in which those with impaired decision-making may be involved. Use this checklist to ensure you are providing sufficient justification in your protocol or application for enrollment of these individuals. See also HRP 013-SOP-Legally Authorized Representatives, Children and Guardians, and HRP 090-SOP-Informed Consent.

Your protocol or application should specify the validated assessment tool that will be used for assessing capacity to consent to research and a copy should be provided with your application. If a standard assessment tool will not be used the IRB may require documentation to determine whether the tool is appropriate in the context of the study and population.

For studies involving non-English speaking participants, your protocol or application must describe how the assessment will conducted. The assessment tool does not need to be translated unless the assessor will assess the participant’s capacity to consent by speaking in the participant’s language. For studies where the assessment will be conducted in English but will include the involvement of an interpreter, the assessment tool does not need to be translated.

Your protocol or application should be explicit regarding the use of a legally authorized representative if one may potentially be utilized to consent on behalf of a participating adult.

As a matter of subjects’ protection, assent should be obtained from incompetent or incapacitated adults for research participation to the extent they are able to provide assent. Even where a legally authorized representative has consented to the research participation, an incompetent or incapacitated adult should, except in rare cases, not be included over their objection (known as dissent). The IRB will consider instances in which superseding considerations may affect this guidance.

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Children

If your research involves children (children are persons who have not attained the legal age for consent to treatments or procedures involved in the research, under the applicable law of the jurisdiction in which the research will be conducted – see UW Health guide here), review the HRP 416-CHECKLIST-Children to ensure that you provide sufficient information in your protocol or application to justify enrollment of children. Consider whether parental permission and assent should be obtained (refer to HRP 416 for guidance) and incorporate this information in your protocol or application. For information on state law implications for enrolling children, see HRP 013-SOP-Legally Authorized Representatives, Children, and Guardians.

It possible that a child will reach the age of majority during the course of the study. The Office for Human Research Protections (OHRP) notes that informed consent should be viewed as an ongoing process throughout the duration of a research project. When a child who was enrolled in research with parental or guardian permission subsequently reaches the legal age of consent to the procedures involved in ongoing research, the subject’s participation in the research is no longer regulated by the requirements of 45 CFR part 46.408 regarding parental or guardian permission and subject assent. Unless requirements for obtaining informed consent can be waived, minors who were initially enrolled with parental/guardian permission and then reach the age of majority must provide legally effective consent if the project continues to meet the definition of research involving human subjects. This includes interacting or intervening with the subject or having access to private identifiable information.

Pregnancy testing of children who may participate in research requires special consideration. Such testing could be performed either to confirm eligibility for the study or as part of routine safety monitoring, such as before the administration of a study drug. Researchers must consider how results of such tests will be handled when they involve children and to whom they will be disclosed. This plan must be clearly outlined in the IRB materials as well as in any consent and assent documents.

Under Wisconsin law, certain health care providers must report to law enforcement or child protective services if they have reason to suspect that a child seen by them in the course of professional duties has been abused.

Reportable child abuse does not include consensual sexual activity by an individual 16 years of age or older. Additionally, health care providers who provide health care services to a child and individuals who obtain information about a child who is receiving health care services from a health care provider are not required to report, unless the following is suspected:

• The sexual intercourse or sexual contact occurred or is likely to occur with a caregiver.
• The child suffered or suffers from a mental illness or mental deficiency that rendered or renders the child temporarily or permanently incapable of understanding or evaluating the consequences of his or her actions.
• The child, because of his or her age or immaturity, was or is incapable of understanding the nature or consequences of sexual intercourse or sexual contact.
• The child was unconscious at the time of the act or for any other reason was physically unable to communicate unwillingness to engage in sexual intercourse or sexual contact.
• That another participant in the sexual contact or sexual intercourse was or is exploiting the child.

“Health care services” includes pregnancy testing, as well as family planning services, obstetrical health care or screening, and diagnosis and treatment for a sexually transmitted infection.

If in the course of clinical research a minor has a positive pregnancy test and there is a reasonable suspicion of abuse, the Principal Investigator or a member of the research team should report to law enforcement or child protective services. Nothing in the law requires reporting to a child’s parents/guardians. Researchers should use their judgment in determining whether parents/guardians should be notified of the test results and/or notified of a report to law enforcement or child protective services.

An executive order issued by the governor in 2012 makes all UW employees mandatory reporters of child abuse. For questions pertaining to Wisconsin’s mandatory reporting statute and the executive order, please contact the UW-Madison Office of Legal Affairs at 608-263-7400.

For guidance on assent, the Assent Process and Documentation section.

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Pregnant Participants and/or Neonates

If you plan to include pregnant participants and/or neonates in your study, additional regulatory requirements may apply. For details on requirements for studies involving pregnant participants and/or neonates, refer to HRP 412-CHECKLIST-Pregnant Participants, HRP 413-CHECKLIST-Non-Viable Neonates, and HRP 414-CHECKLIST-Neonates of Uncertain Viability.

In Wisconsin, the reporting of pregnant participants who habitually abuse drugs or alcohol to a severe degree is permissive but NOT mandatory. Pregnant participants seeking help for drug or alcohol abuse generally do not meet reporting criteria. For studies with a Certificate of Confidentiality (CoC), the CoC protects information about drug or alcohol use from disclosure. In this case, reporting may not occur without explicit consent of the participant. It is advised that researchers not combine the consent to report with the research consent form, especially for potentially therapeutic studies. Rather, if it is determined in a specific case that a report should be made, it is recommended that consent is obtained through a separate form obtained at the time of a proposed report. No reporting may occur if the pregnant participant refuses consent. Contact UW legal counsel for assistance.

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Participants with Status Relationship

Generally, enrolling subjects who are in a status relationship with the researcher(s) is discouraged. It raises special ethical concerns such as a recruitment and consent process that is not free from undue influence. Additionally, enrollment of individuals already known to the research team may heighten the potential for loss of confidentiality for those subjects.

However, if enrolling subjects with a status relationship with the researcher(s), such as family members, students, and employees, is unavoidable, the status relationship should be declared in the IRB application and justification for the inclusion of these subjects provided. The IRB will consider, on a case-by-case basis, the following factors in support of potential exceptions to the general prohibition on enrollment of subjects with potential status relationships with the researcher(s):

• The research presents minimal risk to subjects.
• If the potential subjects are students or employees, participation in the research represents a potential educational opportunity for those individuals.
• The recruitment of these subjects involves only indirect methods (i.e., potential subjects are not recruited on a personal basis). These subjects are recruited through the posting of IRB-approved flyers/ads or through IRB-approved communications sent out to a larger group (e.g., mass mailings through email or letters).
• The consent process will not be conducted by someone with whom the potential subject has a status relationship.
• If the research is conducted within the classroom setting, the instructor is blinded to the identity of participants. For example, a third party who is not in a status relationship with the students could receive data directly from the participants and strip the data of identifiers before providing the information to the researcher who is in a status relationship with the students.

If the IRB agrees that subjects in a status relationship with the research team may be enrolled in a research study, the IRB generally would require the consent form to clarify that participation in the research study or refusal to do so will not affect the individual’s employment or status as a student (e.g., grades or class standing) at the university.

Other individual exceptions for studies where there may be therapeutic benefit but greater than minimal risk may be considered by the IRB. The IRB acknowledges that patients have an inherent status relationship with their health care providers and manage these relationships differently.

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Participants Receiving Protective Services or Mental Health Treatment

Under Wisconsin state law, special provisions apply to individuals receiving protective services (voluntary or involuntary) or inpatient or outpatient treatment for mental illness, developmental disabilities or drug or alcohol dependency in Wisconsin must comply with the special conditions imposed by Wisconsin law.

• Protective services: Persons who receive protective services have the right not to be subjected to experimental research without the express and informed consent of the patient and the patient’s guardian and after consultation with independent specialists and the patient’s legal counsel. More than minimal risk research involving this population must be approved by the IRB and the Wisconsin Department of Health Services before study activities can begin.
• Mental health treatment, et al: Persons receiving treatment for mental illness, developmental disabilities, and alcoholism or drug dependency have the right not to be subjected to experimental research without the express and informed consent of the patient and the patient’s guardian (if any) and after consultation with independent specialists and the patient’s legal counsel. More than minimal risk research involving this population must be approved by the IRB and the Wisconsin Department of Health Services before study activities can begin.

For assistance with Wisconsin Department of Health Services review, contact the Reliance and Navigation Team (RELIANT; irbreliance@wisc.edu).

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Recruiting Veterans for non-VA Research

VA research is defined as research conducted by investigators (serving on VA compensated, WOC, or IPA appointments) while on VA time or on VA property. Research that qualifies as VA research may be funded by the VA, by other sponsors, or be unfunded. Use of VA space that is rented by the University does not apply.

The R&D committee may grant permission for some non-VA studies — i.e., those that do NOT fall into the criteria above — to conduct the following limited activities involving the VA:

• Recruitment of Veterans to a study not focused on Veteran health
• Conduct of administrative or sample processing activities at the VA (e.g. use of office or lab space under UW-Madison appointment) that do not involve interaction or intervention with study subjects

Any of the above activities must first be approved by the VA R&D committee, but studies limited to these activities at or with the VA are NOT considered VA human subjects research and will not be subject to continued VA oversight beyond the initial approval, absent a specific request for information about the study by the VA. Questions about whether an activity falls into one of the above categories should be directed to the VA RDC.

Studies recruiting veterans directly to non-VA studies, with prior RDC approval, should include the following language in any recruiting documents, flyers, and advertisements that are associated with this protocol:

• “This is not VA research, will not be conducted by the VA, has not been reviewed by VA’s Institutional Review Board, and is not endorsed by the VA. The VA is not responsible for any costs incurred by a Veteran if the Veteran enters the study as a research subject. The announcement is being provided for information only.”

No recruitment materials may be posted in VA facilities without approval from the VA.

Pre-screening of records or clinic appointments to identify eligible participants is a VA research activity and is therefore not permitted when recruiting veterans to non-VA studies. Sharing of contact information for a potentially eligible VA patient by a VA clinician or other VA employee with a UW study team may only be done with written authorization of the VA patient using VA Form 10-5345. The above template language for recruitment materials should be inserted into the open text box on Form 10-5345 titled “Type and Extent of Material Released.”

In all other cases, UW Consent and HIPAA templates should be used (rather than VA) and should include the following language:

• “This is not a VA study. Any information you provide the study team will not be kept by the VA. All information pertaining to this study will be obtained and kept by the xxx study team. As a Veteran, your VA clinical care will not be impacted in any way by participating in this study. Your care will continue as usual whether you join the study or not.”
• “We may share information collected about you for this study with the VA.”
• The rest of this form should be standard UW language.

Recruitment of veterans from the William S. Memorial VA Hospital must follow VA recruitment guidelines, including the use of email for research purposes.

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Other Special Populations

Some groups of individuals may be considered vulnerable and require additional protections and rationale be in place to involve these groups in your study. Examples of vulnerable populations include students, employees of the researcher(s)/those with a status relationship with the researcher(s), and active-duty military members. Examples of additional protections that may be required include having someone outside the study team observe the informed consent process, exclusion of the population if not required to achieve study objectives, and independent assessment to address consent capacity.

For a full list of vulnerable populations and protective measures, see HRP 334 – WORKSHEET-Vulnerable Populations.

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