In extremis

It’s not frequent for a State of the Union address to delve into drug approval policy in any depth. Yet that’s exactly what President Trump did when, for the first time, he spoke publicly about legislation allowing terminally ill patients to access experimental treatments that have passed only FDA Phase I trials, often referred to as ‘right to try’ legislation:

We also believe that patients with terminal conditions should have access to experimental treatments that could potentially save their lives. People who are terminally ill should not have to go from country to country to seek a cure — I want to give them a chance right here at home. It is time for the Congress to give these wonderful Americans the ‘right to try’.

The Right to Try is unsurprisingly controversial. On one hand, patient groups see it as a chance to access treatments that are too far in the pipeline for them. It is hard not to have sympathy with this argument. It is especially hard for me to do so so, because my life was saved by an experimental drug that at the time did not have general approval for my condition, though it was known to be safe. At the same time, FDA Commissioner Scott Gottlieb is right to be skeptical about this policy effectively usurping the FDA’s authority to ensure that pharmaceuticals administered to all patients in the United States are safe and effective. Like all great moral quandaries, both sides are, to an extent, right.

What is ‘right to try’?

Quite simply put, right to try laws allow terminally ill patients access to treatments, medications and devices that have passed FDA Phase I testing, but are not yet approved by the FDA. The libertarian Goldwater Institute, which has been pushing and lobbying for right to try, has created a model legislation, variants of which have by now been accepted by 38 states. It provides, in short, an exception for patients suffering from “advanced illness”, defined as

a progressive disease or medical or surgical condition that entails significant functional impairment, that is not considered by a treating physician to be reversible even with administration of current federal drug administration approved and available treatments, and that, without life-sustaining procedures, will soon result in death.[1]

Patients that qualify under this definition would then be allowed access to any treatment, pharmaceutical or device as long as it has passed Phase I testing,[2] although the manufacturer or provider would be under no obligation to sell or provide that treatment to the patient.

Ethical issues

The ‘right to try’ legislation is far from uncontroversial. @gorskon, whom I greatly respect even when I disagree with him, has gone so far as to call it a ‘cruel sham’ and a libertarian attack on the FDA, and his points merit consideration:

I’ve written many times before over the last three years about how “right-to-try” laws have swept the states. When last I wrote about right-to-try, 37 states had passed such laws over the course of a mere three years, and I observed at the time that it wouldn’t surprise me in the least if most or all of the remaining states were to pass such laws within the next year or two. Basically, the idea behind these laws is that the FDA is killing patients (I’m only exaggerating slightly) through its slow drug approval, overcaution, and bureaucratic inertia, or at least letting them die because life-saving drugs are being held up. So the idea, hatched by the Goldwater Institute was that terminally ill patients should have the “right-to-try” experimental drugs not yet approved by the FDA because they have nothing more to lose. Of course, it’s not true that they have nothing more to lose, but I’ll discuss that more later. Basically, right-to-try laws purport to allow the terminally ill “one last shot” by letting them access experimental therapeutics outside of FDA-sanctioned clinical trials. However, these laws operate under a number of false assumptions, not the least of which is the caricature of the FDA as being slow, inefficient, and unwilling to bend, as you will see. They also strip away a number of protections for patients, as you will also see.

While I am not sure I’m on board with the idea of there being a libertarian conspiracy to curb the FDA’s powers – especially given how limited the ambit of right to try legislations would be -, Orac makes an excellent point.

Much of the Goldwater Institute’s position is premised on the FDA being ‘slow’ and inefficient – as they like to present their case, they merely seek to remedy an instance of the state failing to serve citizens adequately. Speaking from personal experience, when you’re dying, everything is too slow and no approval process can come fast enough. It is hard not to have a lot of sympathy towards the patients who know there may be a promising drug in the pipeline but like Moses of old, they will never get to see the promised land. But realistically, the FDA is not slow – indeed, it is as fast as, or sometimes even faster, than regulatory agencies in many other countries.[3]

I would also add that the benefits of investigational therapies has rarely been particularly high, with only about 10% yielding a clinical improvement.[4]. For 90% of patients, then, the right to try would mean putting themselves through another round of torturous treatment instead of spending their last weeks or months focusing on appropriate symptom relief, quality of life and putting their affairs in order. In the end, these might be more important than a forlorn hope of extending one’s life by another few months.

Patients are subject to a high degree of informational asymmetry. When I had to decide between various treatments, I spent days on PubMed, reading every single study, building my own little mini-metaanalysis from my hospital bed. I was lucky – I had access to all the academic literature I could want and I was trained in evaluating that evidence. But most patients aren’t (and there’s no reason why they would be!),[5] and what takes the place of sound knowledge is often less healthy. Patients may feel emotional pressure to try every treatment, however modest the chance of success: be it because they would feel that not doing so is ungrateful towards the doctors who ‘fought for them’, or because they feel they owe it to their family, the psychological pressure to try potentially ineffective treatments is immense, and might rob the patient from their chance to exercise some degree of autonomy over the last moments of their life.

The reverse of the medal

At the same time, many note, respect for the patient’s autonomy should extend to allowing treatment that a competent patient wants, even if the physician disagrees. And, in addition, many argue that it would be paradoxical to allow patients to outright request physician-assisted suicide but not the administration of a treatment that may just save their lives. These arguments are not pointless, and any policy needs to justify why paternalism is particularly justified in this case, and while treatment would be inappropriate where suicide would be permitted.

More importantly, it is arguable that the absence of a ‘right to try’ leads to its own set of tragic adverse consequences, by directing patients to ‘try’ treatments in the unregulated sector of outright quackery. I had the distinct misfortune of witnessing one of these.

Jillian Mai Thi Epperly is an unqualified naturopathic healer with no educational background in nutrition who is running what she describes as a large-scale experiment on volunteers (aka marks). Her victims – around 30,000 – joined her Facebook group, which is closer to a cult than anything else, and consume vast quantities of a concoction that contains an unhealthy amount of salt and fermented cabbage juice. This is supposed to rid the body of ‘weaponised mutant candida and parasites’, which she claims is responsible for all or most pathological processes in the human body. Ms Epperly’s Facebook group is replete with images generally for the strong of stomach (including gut lining which her acolytes believe are parasites), but that’s nothing compared to the damage she has done to human lives. None is more tragic than the story of J. (name redacted in the interests of privacy), who is suffering from an unspecified cancer, and who was one of the biggest supporters of the ‘protocol’… until the placebo effect wore off, and she realised it is all a fraud. But valuable time spent on a miserable, painful treatment that bore no benefit, and might well accelerated J.’s disease progression.

There are, as we speak, thousands, if not millions, of Jillian Epperlys, peddling their fraudulent wares to an uninformed public. When the chips are down and conventional treatment options have been exhausted, patients will always turn to alternatives. With Right to Try, they could do so under medical supervision, adequately counseled and with their side effects managed. Moreover, the medications administered would have to adhere to standards of manufacture (GMP) and have a well-understood mechanism of action in most cases. There will always be desperate patients – and a well-designed Right to Try policy may keep them away from quacks and within the traditional medical system that would cater better for their needs and handle the transition from trying salvage/last-ditch treatments to palliative care and ensuring adequate end-of-life care.

Another undesirable aspect is the existence of an informal right to try. Darrow et al. describe the case of Josh Hardy, a 7-year-old boy who received the experimental antiviral drug brincidofovir after the media drew sufficient attention to his case for the manufacturer to ‘add’ Josh to an open-label study.[6] Similarly, public sympathy for the aid workers from Samaritan’s Purse, including Kent Brantly, allowed for the use of the chimeric monoclonal antibody ZMapp. From the perspective of health equity, it is concerning that this informal procedure is amenable only to those with the means and connections to launch a massive social media campaign. In this sense, it is eerily reminiscent of the case of Sarah Murnaghan, whose lung transplant ineligibility was supervened by a large public campaign. It is fair to question whether the effects of a discretionary scheme that ultimately favours those with social, political and economic influence would not be better supplanted by a formal, equitable system available to all on equal terms.

The light and the dark

I don’t normally discuss end-of-life policy or bioethics: my days in that field are long gone, and my priority now is to try to avert those situations. However, to me, Right to Try will always be more than an abstract issue. A few years ago, a last-ditch therapy ended up working so well, it saved my life and put me into remission. After failing two different treatment regimens, we were out of conventional options, and things looked bleak – until a dedicated consultant oncologist took on the drug manufacturer, the hospital board and even the government, so as to be allowed to administer a drug still not approved for the particular indication. It was a huge gamble, and it worked. I will forever be grateful for the chance I’ve been given – but I’m also aware that I was the exception, not the rule, and n=1 doth not a good rule make.

I believe that even if the current version of Right to Try is, as Orac says, a ‘cruel sham’, it does not inherently have to be so.

There is enormous potential in Right to Try policies, not only for patients but also for drug development and future patients. Well implemented, it does not have to be a cruel sham. Nor does it necessarily have to be a wholesale ouster of the FDA’s competence.

But if it is to be anything other than that, it has to come with a comprehensive institutional structure that ensures that consent is truly free and adequate. Crucially, an independent physician must be available to honestly explain the odds and assess the patient’s understanding and capacity.[7] The process must focus on balancing respect for patient autonomy against a degree of paternalism needed to protect a vulnerable patient. And in the end, it is paramount to have a sensitive understanding of the potential pressures the patient is under. It is not an easy task. But it is not an impossible one.

Many states now speak of ‘death with dignity’ as a euphemism for physician-assisted suicide. Perhaps to some people, that indeed is dignity, and it is a choice that deserves consideration. It is not cowardice or refusal to fight. But what about patients whose concept of dignity would closer encompass ‘staying in the fight’? Whether it is right or wrong, the practice of physician assisted suicide has shown that true consent can be separated from impaired consent in such a difficult scenario. Why, then, would it be impossible to separate instances where the Right to Try would merely engender false hope from those where it might have a small but not unrealistic clinical chance to succeed?

In the end, one needs to be able to separate the present rules from the principle. The present rules, and much of the motivation behind it, are clearly imperfect. But the potential behind Right to Try is significant. Regulated Right to Try can curb quackery and unregulated charlatans preying on the incurably ill by providing more legitimate last-ditch treatments carried out under medical supervision. It can accelerate research without prejudicing patient welfare if the pharmaceutical manufacturer is kept at arm’s length. And maybe, just maybe, it can save lives.

The current legislative framework might not be there yet. But it has the potential to make a difference not just to research but for millions of patients who have exhausted all possibilities, who, like me, might strike gold. Just as the history of science is one of incremental development, procedures and practices should be given the chance to develop over time.

References   [ + ]

1. Right to Try Model Legislation, sec.1(2)(a).
2. Ibid., sec.2(1).
3. Downing, N.S. et al. Regulatory review of novel therapeutics – comparison of three regulatory agencies. N Engl J Med 366:2284-2293.
4. Freireich, E.J. et al. The role of investigational therapy in management of patients with advanced metastatic malignancy. J Clin Oncol 27:304-306.
5. Woloshin S, Schwartz LM, Welch HG. Patients and medical statistics: interest, confidence, and ability. J Gen Intern Med 20:996-1000.
6. Darrow, J.J. et al. Practical, Legal and Ethical Issues in Expanded Access to Investigational Drugs. N Engl J Med 372:279-286.
7. In all honesty, I am not entirely sure that all too many patients in that emotionally and physically difficult situation are lucid enough to comprehend the entirety of what is involved in such a decision!