The FDA released draft guidelines (“Guidelines”) on Monday, March 9, 2015 establishing recommendations on the use of e-media and processes to obtain informed consent for clinical investigations (trials) of medical products including human drug and biological products, medical devices and combinations. The Guidelines provide useful insight for how the FDA recommends clinical investigators, sponsors and institutional review boards (“IRB”) should use e-informed consent for a clinical trial.

The FDA defines e-informed consent as “using electronic systems and processes that may employ multiple electronic media (e.g., text, graphics, audio, video, podcasts and interactive Web sites, biological recognition devices, and card readers) to convey information related to the study and to obtain and document informed consent.” The FDA reminds clinical investigators and sponsors that informed consent is more than just a subject’s signature.  Informed consent – whether completed electronically or in paper form – includes providing prospective clinical trial participants with enough information regarding the research to enable them to make an informed decision regarding whether to participate in the study. The subjects must have “adequate information” about the research.  Clinical investigators and sponsors may use video conferencing (i.e. Skype) to answer a subject’s questions about the clinical trial.

The Guidelines also include a question and answer section containing 14 inquires such as:

How information in an e-informed consent should be presented to subjects; How/where e-informed consent processes should be conducted; and How/when questions from subjects should be answered.

Similar to CMS and states recognizing the authenticity of e-signatures, this guidance demonstrates the FDA’s desire to digitize health care and respond to the increased patient access to clinical trials in states passing “right-to-try” bills.  Right-to-try bills generally permit doctors and terminally ill patients to negotiate directly with drug companies to obtain experimental drugs that have passed Phase-I trials. Stay tuned for a forthcoming Health Law Informer blog announcing the FDA’s release of the e-informed consent final guidelines, which clinical investigators, sponsors and IRBs will want to consider implementing.