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ìInformed Consent and Privacy of De-‐Identified Information and Estimated Data
Lessons from Iceland and the United States in an Era of Computational Genomics
Conference on Big Data, Health Law and BioethicsPetrie-‐Flom Center for Health Law Policy, Biotechnology, and Bioethics
Harvard Law School May 6, 2016
Donna M. GitterProfessor of Law
Baruch College, City University of New YorkNew York, NY
Hypothetical/Thought Experiment
ì Your mother has been in the hospital for a stroke and agreed to participate in a clinical study
ì Her brother volunteered his DNA for a research study
ì Researchers can now predict your likelihood of a genetic disposition for stroke (estimated data)
ì You are then informed of these results without being asked if you would like them
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Temperature in the Room
Invasion of privacy?
versus
Advancement of public health?
Do you have a right of informed consent?
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Assertion #1
ì Informed consent should be required for individuals from whom estimated data gleaned
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Assertion #2
ì Should be robust recognition of the right not to know one’s genetic risk factors
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What Is Estimated Data?
ì deCODE Genetics searches for associations between genetic variants and human disease
ì deCODE calculates the probability that individuals, whose DNA was not sequenced, carry particular genetic variants, using genetic and genealogical data from research participants
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How Is Estimated Data Used in Iceland?
ì deCODE uses genotypes from 120,000 research participants and genealogical data
ì Estimates “in silico” genotypes of close relatives of volunteers
ì Can deduce genotypes for entire Icelandic population of 320,000
ì Able to identify 2,000 Icelanders with the BRCA2 gene, even if they have not participated in genetic research
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Does This Matter for Nation of Roughly 320,000,000?
ì Research scalable if enough data collected
ì U.S. lacks a national db similar to Iceland’s, BUT
ì Private companies such as 23andme and Ancestry.com -‐ rough gene maps of several million people
ì U.S. NIH -‐ spend millions of dollars in coming years on sequencing full genome data on tens of thousands of people
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Big Data and Privacy
10“I’m Big Data, and this is my friend No Privacy.”
I’m Big Data, and this is my friend No Privacy.
THESIS I: Informed Consent (IC) Should Apply to Estimated Data
ì U.S. Common Rule governs human subjects research
ì IC required for reasonably foreseeable risks (risk that information about participant will extend to family)
ì NO IC required if data or biospecimens non-‐identified
ì BUT, proposed U.S. rule change by U.S. HHS suggests IC even for non-‐identifiable biospecimens or private information (not estimated data)
ì Recently revised National Institutes of Health Genomic Data-‐Sharing Policy (GDS) already requires IC for genomic or other data, even if non-‐identified
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THESIS II: Maintenance of the Right Not to Know (RNTK) One’s Genetic Risks
ì Some erosion of the RNTK genetic risks (professional societies and IRBs question)
ì Leads to possibility of being conscripted into genetic research, through estimated data, and then having findings returned to you, all without informed consent
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Why Is Informed Consent Necessary for Estimated Data?
ì deCODE’s 2012 proposal to use hospital records to link individuals for whom data had been estimated to private information such as surgery codes and prescriptions
ì Icelandic Data Protection Authority (DPA) first denied the request
ì DPA then relented when deCODE assured that any genetic imputation “would be generated in a split second in the processing memory of a computer” and “then cease to exist and would never be accessible to anyone in any form”
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De-‐Identification/Re-‐Identification Risk
ì deCODE states estimated data is accurate on a group, not individual, level
ì Risk depends on the likelihood of re-‐identification
ì Achieved through use of more powerful computers; datasets produced by local, state, and federal governments; and other publicly available sources
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Risks of Big Data
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Autonomy
ì Even if re-‐identification unlikely, right of autonomy
ì Individuals have the right to decline to participate altogether, or to limit their participation, on moral, ethical, religious, cultural, or other grounds
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Public Opinion on Informed Consent
ì If information identifiable, all protections apply, but if not identifiable, none apply (bimodal)
ì Survey data indicates that public does not recognize this distinction
ì Survey of patients indicated want IC when research performed: 72% when data non-‐identified v. 81% when identifiable
ì The majority of individuals want to be asked for informed consent, whether information identifiable or not
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Proposed Changes to the Law of Informed Consent
ì Presently use biospecimens and private information without consent by stripping them of identifiers
ì Proposed HHS change would require informed consent (prospectively) for secondary research with a biospecimen(part of a blood sample that is left over after being drawn for clinical purposes), even if non-‐identified
ì Would treat biospecimens as “intrinsically identifiable” because of the genetic information imbedded in them
ì Research community opposes, while most individual members of society who commented were in favor
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U.S. National Institutes of Health (NIH) Policy
ì In 2014, NIH revised its Genomic Data Sharing Policy (GDS)
ì Researchers are “expected” to obtain participants’ consent for the use of not only their biospecimens and identifiable private information, but also use of genomic data
ì True even if the cell lines or clinical specimens used to generate the data are de-‐identified
ì NIH GDS goes even further than proposed federal rule change by requiring informed consent for de-‐identified genomic data, not just biospecimens or personal information (name, address, diagnosis)
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Trends Point Toward Requirement of Informed Consent
ì Proposed federal rule change and NIH GDS indicate trend toward requiring informed consent for use of de-‐identified specimens and genetic information
ì Law does not discuss estimated data
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Any Meaningful Difference Between De-‐identified Specimens and Information and Estimated Data?
ì Neither requires direct interaction with the individual
ì Both potentially subject the research subject to re-‐identification risk
ì Estimated data even more tied to identifiers than non-‐identified data
ì Even without re-‐identification (if estimated data are not accurate at the individual level), issue of autonomy remains (right to object to research participation)
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Should Informed Consent Be Required for Estimated Data?
ì Law of informed consent, codified before the development of current technologies, does not address issues of informed consent arising from use of estimated data
ì Arguments in favor of IC: ethical, religious or other personal objections to research participation; objection to commercial exploitation (no chance for disclaimer); would promote public support for research
ì Arguments against IC: administrative burden and cost of contacting each participant; impedes research
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Conclusion
ì Informed consent should be required for estimated data, given the ease of re-‐identification and the right of autonomy (the right to object to research participation)
ì Nuremberg Code was created in order to prevent a class of people, perhaps the sickest among us who interact with the medical system, from unwilling or unwitting research participation
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The Right Not to Know One’s Genetic Risks
ì Previously widely accepted, but increasingly in doubt
ì American College of Medical Genetics now suggests that when clinically recommended genome sequencing occurs, a minimum list of conditions should be evaluated and reported to the ordering clinician
ì Incidental findings should be communicated to the family even without seeking preferences
ì Imposes on clinicians duty to hunt and to know
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Survey Evidence of Erosion of the RNTK
ì Survey of IRB members published in 2015: 96% endorse the right of research participants not to know genetic findings
ì But when presented with a specific case where an individual patient chose not to know: 35% indicated that RNTK should absolutely be respected and 28% would “probably honor” it
ì RNTK seems sacrosanct, but loses support when people forced to confront tradeoffs in real cases
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In Iceland, the RNTK Confronts Estimated Data
ì deCODE can identify every Icelander with the BRCA2 mutation (raises risk of breast and ovarian cancer), even if the individuals have not submitted to genetic testing
ì deCODE asked permission to inform Icelanders of risks revealed when studying their estimated data, and a government commission is evaluating the process
ì Shows the complexity with regard to estimated data, as individuals did not plan to participate in research
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Paradox of Computational Genomics
ì Trend in U.S. law toward informed consent even for non-‐identified data
ì However, emerging view that genetic findings ought to be gathered and returned to individuals, even absent their informed consent
ì Raises troubling specter of individuals who have consented neither to use of their estimated data nor to the return of incidental findings, being involved in research without their informed consent and then contacted with the results
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Thank you
Donna M. GitterProfessor of Law
Baruch College, City University of New YorkNew York, NY
USA
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