Protection of persons with mental disorders from research risk: a response to the report of the National Bioethics Advisory Commission

For the last several years, the National Bioethics Advisory Commission (NBAC) has considered several complex issues relating to biomedical research. Prominent among these considerations has been the protection of the rights and welfare of human research subjects, and the NBAC recently submitted to the president a report entitled Research Involving Persons With Mental Disorders That May Affect Decisionmaking Capacity. The importance of careful protection of vulnerable populations from undue or inappropriate risk in human subject research cannot be overemphasized, and the NBAC report includes recommendations that would strengthen such protection. However, the creation of workable mechanisms that allow appropriate risk-benefit judgments and that preserve respect for the autonomy of participating research subjects is challenging indeed. We believe that the NBAC has developed recommendations that strengthen protections for individual research participants. However, several key elements of the report are stigmatizing to persons with psychiatric disorders, and they could, if adopted as new federal regulations, inappropriately impede critical categories of psychiatric research.

Uninformed decisionmaking. The case of surrogate research consent

A New York court recently struck down state Office of Mental Health regulations governing research involving subjects with impaired decisionmaking capacity. The court held that neither incapacitated adults nor minors could participate in any research protocol that contained a nontherapeutic element, irrespective of possible benefits to the subject or the importance of the knowledge to be gained. Although the decision rested on a technical point of law and dealt only with psychiatric research, the court's holding has significantly broader implications.

Protecting mental health research subjects without prohibiting progress

Federal regulations governing the protection of human research subjects fail to specifically address research involving persons with mental illness. In 1990 the New York State Office of Mental Health issued regulations covering such research. The regulations are designed to respect the autonomy of psychiatric patients to make decisions about participation in research while protecting patients whose capacity to consent may be impaired. Patients who lack sufficient capacity may be included in research with the consent of a specified legally authorized surrogate if the facility's institutional review board determines that the research cannot be done without the participation of incapable subjects and it is considered likely to produce knowledge of overriding therapeutic importance for persons with the patients's condition or it has the possibility of directly benefiting the patient. In all cases involving more than minimal risk, the consent of the patient's treatment team must be obtained.