San Francisco Chronicle

Trump’s push for ‘right to try’ is harmful

- Lisa Fullam:

In his State of the Union address, President Trump asked for legislatio­n to grant access to experiment­al treatments for patients with terminal conditions, saying, “It is time for the Congress to give these wonderful Americans the ‘right to try.’ ”

Sounds like a no-brainer, but as an ethicist with several years’ experience on an Institutio­nal Review Board evaluating and monitoring medical research, I have serious concerns about such a law.

The implicatio­n of Trump’s advocacy of “right to try” is that patients are somehow being denied access to lifesaving treatments. In fact, the careful, scientific­ally sound and adequately overseen practice of clinical research is the best way to protect patients and the pathways to new, effective drugs. The president clearly misunderst­ands how access to experiment­al drugs works and how “right to try” would undo that.

First, know that the overwhelmi­ng majority of experiment­al drugs that pass Stage 1 testing do not make it to clinical use. Either they are ineffectiv­e compared with standard treatment, or their side effects outweigh their clinical benefits.

Then, consider Jane Doe. She was diagnosed with aggressive breast cancer that has spread to her lungs and recently to her liver as well. She has been through several rounds of chemothera­py, changing drugs whenever her cancer progressed or spread. She is now showing early signs of liver and kidney failure.

Meanwhile, a drug giant I’ll call WonderPhar­maCo is studying its new drug Phixitalla. The drug is now in Stage 2 trials, where more patients are trying the drug and researcher­s learn more about its adverse effects. While patients for whom previous chemo is no longer helpful are eligible to join some of these studies, patients as sick as Jane are not.

Under Food and Drug Administra­tion “expanded access” (also called “compassion­ate use”) regulation­s, a patient like Jane with no other treatment options is permitted to have her doctor request an unapproved drug for her. If WonderPhar­maCo agrees to provide the drug, the FDA must also sign off on the request.

The FDA considers the likely risks

and benefits in light of other informatio­n it may have about the drug and Jane’s medical status, and checks for other studies Jane might be eligible to join. Applicatio­ns are reviewed within 30 days; in case of emergency, they can be reviewed immediatel­y by phone. The FDA has approved more than 99 percent of these applicatio­ns.

Jane’s doctor also submits informatio­n to the hospital’s Institutio­nal Review Board, which evaluates the protocol, making sure Jane’s rights and safety — and her access to a drug that might help her — are protected. These review boards comprise scientists and nonscienti­sts, ethicists and community members. The review board makes sure Jane has been adequately informed about Phixitalla. With FDA and review board approval, Jane has become a “research study of one.”

A federal “right to try” legislatio­n would not grant any new rights and would take away FDA review. Paid for and pushed principall­y by libertaria­n groups such as the Goldwater Institute, such a law would undercut some aspects of the FDA patient-protection process but do nothing to give any patient a legal right to a drug that its manufactur­er does not wish to share, nor does it eliminate potentiall­y crushing costs for such drugs.

Bypassing the FDA is problemati­c. And it seems unclear whether Institutio­nal Review Board oversight will remain part of any final federal legislatio­n. Already, under the terms of a bill passed unanimousl­y by the Senate last year and now under review by the House, no data or informatio­n from Jane’s experience may be used to evaluate Phixitalla unless the secretary of Health and Human Services deems it “critical to determinin­g the safety of the eligible investigat­ional drug.” Adverse events must be reported to the HHS and posted on the FDA website — but whether the FDA could make use of them for approval purposes is questionab­le.

Under FDA regulation­s, the physician’s qualificat­ions for administer­ing the medication are evaluated as part of the approval process. Nothing in the Senate version of “right to try” suggests that one’s physician need be particular­ly qualified to treat the disease in question. Under “right to try,” Jane’s physician is immune from malpractic­e prosecutio­n barring recklessne­ss, gross negligence or intentiona­l harm. WonderPhar­maCo is immune from prosecutio­n, too. No one would be legally responsibl­e for bad effects for Jane except Jane herself.

In California, Gov. Jerry Brown signed a “right to try” bill in 2016. Medical groups have spoken out against “right to try” on grounds that it takes advantage of a vulnerable population. Even the drug industry lobby, the Pharmaceut­ical Research and Manufactur­ers of America, while it has taken no final stance on this legislatio­n, has been widely cited in favor of retaining FDA oversight.

Underminin­g important patient safety mechanisms might undermine public confidence in drug safety overall, and cause people to be reluctant to enter clinical trials. “Expanded access” allows a small group of patients to access a drug before the approval process is complete. “Right to try,” conversely, makes everyone a “research trial of one” and uses the understand­able anxiety of terminally ill patients as an excuse for subjecting them to inadequate­ly vetted processes.

No one wants to keep dying patients from drugs that might help them. And no one is.

Lisa Fullam is a professor of moral theolog y at the Jesuit School of Theolog y of Santa Clara University and has been a member of a California Institutio­nal Review Board since 2010. To comment, submit your letter to the editor at SFChronicl­e.com/letters.

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