Manuel B. Garcia

Manuel B. Garcia serves as the Senior Director for Educational Technology and Digital Learning at FEU Institute of Technology, Manila, Philippines. Read More

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What Should Researchers Do When a Participant and Their Representative Disagree About Participation?

A legally authorized representative's permission does not make the participant's own wishes irrelevant. When a participant and representative disagree, researchers should first determine the participant's current consent capacity, then apply the study's assent, dissent, representative-consent, and withdrawal requirements.

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Participant and Representative Disagreement Guide 154 of 398
01 · The Question

Whose decision controls when the participant and representative want different things?

A legally authorized representative agrees to research participation, but the participant pulls away and says no. In another case, the participant wants to join, but the representative refuses permission. Perhaps the participant's ability to make the decision is uncertain, or their capacity has changed since enrollment.

It is tempting to resolve these situations with a simple hierarchy: either the representative always decides, or the participant's preference always prevails. Research ethics is more conditional than that.

The first question is not who has the stronger opinion. It is whether the participant currently has the capacity and legal authority to make the research decision themselves. If they do, representative consent ordinarily should not substitute for their decision. If they do not, the representative may have formal authority, but the participant's assent, dissent, preferences, and welfare can still matter substantially.

02 · The Short Answer

Resolve capacity and authority first, then address assent, dissent, and the study's rules

In Brief

When a participant and representative disagree about research participation, first determine whether the participant currently has the capacity and legal authority to make the decision. If the participant can provide their own legally effective consent, their decision should ordinarily govern; if representative consent is legitimately required, researchers must then follow the applicable rules for the representative's authority while still considering the participant's assent, dissent, preferences, and welfare.

The 2024 Declaration of Helsinki states that when a person incapable of giving free and informed consent can provide assent, that assent should be sought in addition to representative consent and the person's dissent should be respected. Specific requirements vary across jurisdictions, populations, and research frameworks, so difficult disagreements should be handled under the approved protocol and, when necessary, with the IRB or research ethics committee rather than improvised at the bedside or recruitment desk.

03 · What You Need to Know

Not every disagreement is the same ethical problem

First determine whether the participant still needs a representative

A representative's authority to provide research consent generally arises because the participant cannot provide the required legally effective consent themselves. Under OHRP guidance, when an adult lacks consent capacity, only a legally authorized representative may provide consent on the person's behalf unless an appropriate waiver applies. If the participant regains or develops capacity, however, their own consent must be obtained for further research because representative consent no longer substitutes for the participant's decision.

This makes capacity the first branch in the disagreement analysis.

Participant has adequate consent capacity The participation decision should ordinarily be obtained directly from the participant. A representative should not override the participant merely because the representative previously made decisions while capacity was impaired.
Participant lacks adequate consent capacity An authorized representative may make the legally effective participation decision when the governing framework permits it, while the participant should still be involved to the extent possible.

If capacity itself is uncertain, use the approved process to determine whether the participant can make the research decision before trying to resolve the disagreement.

Representative consent does not erase the participant's voice

ICH E6(R3) states that when prospective clinical-trial participants cannot provide informed consent, their legally acceptable representatives should provide consent in the participants' best interest. It also states that potential participants should be informed about the trial in a manner that facilitates their understanding.

The Declaration of Helsinki goes further for people incapable of giving free and informed consent. When they are able to provide assent, researchers must seek that assent in addition to consent from the legally authorized representative, consider the participant's expressed preferences and values, and respect the participant's dissent.

Representative consent therefore should not turn the participant into a passive object of somebody else's decision.

Assent is more than the absence of resistance

Assent generally refers to affirmative agreement from a person who cannot provide the legally effective consent required for participation. Requirements differ among populations and research frameworks.

In pediatric research under HHS regulations, for example, the IRB determines when children are capable of assent. OHRP states that when assent is required, a child's dissent ordinarily prevents participation even when a parent or guardian has granted permission, subject to a specific regulatory exception involving an intervention offering an important prospect of direct benefit available only through the research.

The exact pediatric rule should not simply be transplanted into adult research involving impaired capacity. It illustrates an important principle, however: permission from another person and agreement from the participant are distinct ethical elements.

Dissent can be verbal or nonverbal

A participant does not necessarily need to say the words "I withdraw consent" for researchers to notice unwillingness.

SACHRP recommendations concerning people with impaired decision-making capacity state that IRBs should consider what constitutes dissent, particularly for people with limited communication ability. Nonverbal behavior or actions indicating unwillingness to undergo a research procedure may constitute failure to assent or dissent.

Examples might include repeatedly saying no, pulling away from a research-only procedure, becoming distressed specifically when participation is attempted, or consistently communicating unwillingness through an established communication method.

Watch Out

Do not label every sign of discomfort as dissent without considering its cause, but do not dismiss persistent resistance merely because the representative has signed. Determine what the participant is communicating and follow the study's approved assent and dissent procedures.

If a capable participant says no, a representative ordinarily cannot turn that into yes

Once a participant has the capacity and authority to provide their own informed consent, the basis for substitute decision-making generally disappears. OHRP explicitly states that when a participant regains or develops capacity, their own consent must be obtained for further research and the representative's prior consent is no longer valid as a substitute.

This means that a representative's preference for continued participation does not ordinarily override the decision of a participant who has regained the ability to decide for themselves.

Researchers should document the capacity determination and follow the protocol's withdrawal procedures if the participant declines continued involvement.

If the participant lacks capacity and says no, dissent usually deserves substantial weight

The Declaration of Helsinki states directly that the dissent of a participant incapable of giving free and informed consent should be respected.

SACHRP likewise recommends careful attention to assent and dissent for adults with impaired decision-making capacity, including nonverbal expressions of unwillingness.

The precise legal effect of dissent can depend on the jurisdiction, research population, and applicable framework. Researchers should therefore avoid inventing a universal rule for every study. Still, an authorized representative's signature should not be treated as permission to ignore meaningful participant resistance.

If the participant wants to participate but the representative refuses, agreement from the participant may not be enough

The opposite disagreement creates a different problem. A person who lacks the capacity required for legally effective consent may be enthusiastic about participating, but if the governing framework requires permission from an authorized representative, the participant's assent alone does not necessarily authorize enrollment.

ICH E6(R3), for example, states that for potential trial participants unable to provide informed consent, the legally acceptable representative should provide consent before participation.

Similarly, in HHS-regulated pediatric research where parental permission has not been waived, OHRP states that a child's assent does not permit enrollment without the required parental or guardian permission.

Researchers should not therefore convert assent into legally effective consent merely because the participant appears eager to enroll.

Disagreement may reveal that capacity needs to be reassessed

Suppose a representative says the participant cannot possibly understand the study, while the participant gives coherent explanations of the procedures, risks, alternatives, and reasons for wanting to participate. That disagreement should not automatically be resolved in favor of the representative.

Conversely, a participant may insist on joining while demonstrating substantial misunderstanding that persists after appropriate explanation.

In either case, disagreement can be a signal to reassess rather than a reason to choose whichever speaker seems more persuasive. The question remains whether the participant currently possesses the abilities required for this particular decision.

The representative's role extends beyond signing the enrollment form

SACHRP notes that the role of an LAR will often extend beyond initial enrollment to ongoing monitoring and research decision-making. It recommends safeguards tailored to the study's risks and benefits.

This matters in longitudinal research. New risks may emerge. Procedures may change. The participant's condition may improve or deteriorate. The representative and participant may begin to disagree only after months or years of participation.

The protocol should therefore anticipate ongoing decision-making rather than treating representative consent as a one-time administrative event.

Researchers should distinguish disagreement from conflict of interest

A representative may have interests that do not perfectly align with the participant's. Participation might provide access to additional clinical monitoring, reduce caregiving burden, provide compensation, or satisfy the representative's hope for an experimental intervention.

That does not automatically make the representative inappropriate. It does mean researchers should remain attentive to whether the decision appears centered on the participant's interests, preferences, and welfare.

ICH E6(R3) specifically states that legally acceptable representatives providing consent should act in the participant's best interest.

The representative must actually have authority before their disagreement matters as representative disagreement

A family member who strongly opposes research is not necessarily the participant's legally authorized representative. Nor does being the participant's caregiver automatically confer research-consent authority.

Researchers should first verify who actually qualifies as a legally authorized representative under the applicable law. OHRP emphasizes that LAR status depends on the law of the jurisdiction in which the research is conducted.

A disagreement with an unauthorized relative may still matter socially or practically, but it is not the same legal consent problem.

Do not pressure either side into agreement for the sake of recruitment

The goal is not to persuade the participant and representative to produce the enrollment decision the research team prefers.

Researchers can clarify misunderstandings, explain each person's role, allow time for discussion, and identify whether disagreement arises from inaccurate information. But informed consent must remain voluntary. OHRP emphasizes that consent from either the participant or legally authorized representative must be sought under circumstances providing adequate opportunity to consider participation and minimizing coercion or undue influence.

Sometimes disagreement will remain after everyone understands the study. Ethical research needs a procedure for that outcome too.

Complex disagreements should be escalated rather than improvised

A protocol involving participants who may lack consent capacity should ideally specify how assent, dissent, withdrawal, fluctuating capacity, and representative decision-making will be handled. The IRB or research ethics committee should review those safeguards prospectively.

If an unanticipated disagreement raises uncertainty about legal authority, capacity, participant safety, or whether continued participation is permissible, investigators should seek guidance through the appropriate institutional and ethics channels rather than creating a new rule during the encounter.

Investigators remain responsible for conducting research according to the IRB-approved protocol and consent requirements.

04 · A Practical Example

When the representative wants participation but the participant resists

Hypothetical Example

A participant with impaired consent capacity refuses a research-only procedure

A longitudinal study includes adults with progressive cognitive impairment. One participant was enrolled through a legally authorized representative under the study's approved procedures. The participant can understand simple explanations but does not have the capacity required for full informed consent.

1. A disagreement appears The representative wants the participant to continue. When staff prepare for a research-only blood draw, however, the participant repeatedly says no and pulls their arm away.
2. Stop and interpret the behavior The research team does not proceed merely because the representative previously signed. Staff pause and determine whether the behavior reflects temporary confusion, fear that can be appropriately addressed, discomfort, or meaningful dissent.
3. Explain the procedure accessibly The participant receives a simple explanation of the blood draw and is given an opportunity to communicate willingness or unwillingness without pressure.
4. Apply the approved dissent procedure The participant continues to refuse. The research team follows the protocol and ethics-approved rules concerning participant dissent rather than asking the representative to authorize physical persistence.
5. Discuss the disagreement with the representative The researcher explains that representative consent does not make the participant's expressed unwillingness irrelevant and describes what the approved procedure permits.
6. Document and escalate if necessary The team records the participant's behavior, the representative's position, and the action taken. If the protocol does not clearly resolve the situation, the investigator seeks appropriate IRB or ethics guidance before attempting the procedure again.

The representative's consent remained legally and ethically relevant, but it was not treated as unlimited permission to override the participant's meaningful resistance.

05 · What Researchers Often Get Wrong

Common mistakes when participants and representatives disagree

Misconception

The representative always has the final word

Not necessarily. If the participant has adequate consent capacity, their own decision ordinarily governs. If the participant lacks full capacity, applicable assent and dissent requirements may still constrain what representative permission allows. The Declaration of Helsinki states that a participant's dissent should be respected.

Misconception

The participant always has the final word even if they cannot legally consent

The participant's wishes remain important, but assent alone may not authorize research when legally effective representative permission is required. For example, ICH E6(R3) requires consent from the legally acceptable representative for potential trial participants unable to provide informed consent.

Misconception

A signed representative consent form settles future disagreements

Representative consent is part of an ongoing research relationship. Capacity can change, new procedures may arise, and participant assent or dissent may become relevant later. SACHRP recommends considering the representative's role in ongoing research decisions, not merely enrollment.

Misconception

Only spoken refusal counts as dissent

Not necessarily. SACHRP recommends considering nonverbal communication and behavior indicating unwillingness, particularly when participants have limited ability to communicate.

Misconception

A family member's disagreement automatically creates an LAR dispute

Only someone with the relevant legal authority is acting as the participant's LAR. Family opinions may still matter, but researchers should verify representative status under applicable law before treating the relative as the formal decision-maker.

Misconception

The research team should persuade both sides until they agree

Researchers may clarify information and resolve misunderstandings, but they should not pressure either person to produce a preferred enrollment outcome. Consent procedures must minimize coercion and undue influence.

06 · What This Means for You

Use a decision sequence rather than choosing sides immediately

Participant-representative disagreement should trigger a structured review. The order matters because the answer changes substantially depending on the participant's current capacity and the representative's actual authority.

A practical disagreement framework

If the participant currently has adequate capacity to provide legally effective consent
Seek the participation decision directly from the participant. A representative's prior or contrary preference ordinarily should not substitute for the capable participant's decision.
If the participant lacks consent capacity but clearly dissents
Pause the research activity and apply the protocol, applicable law, and ethics requirements concerning dissent. Do not assume representative permission automatically overrides resistance.
If the participant lacks consent capacity, assents, but the authorized representative refuses permission
Do not treat assent as legally effective consent when representative permission is required. Follow the applicable representative-consent rules.
If capacity is uncertain or appears to have changed
Reassess capacity using the approved procedure before deciding whose authorization is required.
If disagreement arises from misunderstanding
Clarify the research information and each person's role, then allow them to reconsider without pressure.
If the disagreement remains ethically or legally ambiguous
Pause enrollment or the disputed research activity when appropriate and seek guidance from the investigator, IRB or ethics committee, and institutional legal or clinical resources as relevant.

The safest question is not "Who wins?" It is "What authority does each person have, what is the participant currently capable of deciding, what are they communicating, and what does the approved ethical and legal framework require?"

07 · A Quick Checklist

When the participant and representative disagree

Before proceeding with enrollment or the disputed research activity, check:
Determine whether the participant currently has the capacity required to make their own research participation decision.
Verify that the person claiming representative authority actually qualifies under applicable law and the approved research procedure.
Identify whether the participant is expressing consent, assent, uncertainty, refusal, or meaningful verbal or nonverbal dissent.
Determine what the protocol, IRB or ethics approval, and applicable regulations require concerning assent and dissent.
Clarify misunderstandings before treating the disagreement as a genuine conflict of preferences.
Consider whether the representative is acting in accordance with the participant's interests, known preferences, and the standards applicable to the representative's role.
Do not pressure the participant or representative to resolve disagreement in favor of recruitment or continued participation.
Reassess and obtain the participant's own consent if capacity has returned or developed sufficiently.
Document significant disagreements and seek IRB, ethics, legal, or other institutional guidance when the approved procedure does not clearly resolve the situation.
08 · Frequently Asked Questions

Questions about participant and representative disagreement

What if the LAR says yes but the participant says no?

First determine whether the participant has consent capacity. If they do, their own consent decision should ordinarily be sought directly. If they lack full capacity, their refusal may constitute dissent. The Declaration of Helsinki states that dissent from a participant incapable of giving free and informed consent should be respected, while specific legal and procedural requirements should also be followed.

What if the participant wants to join but the LAR says no?

If the participant lacks the capacity required for legally effective consent and representative permission is required, the participant's willingness or assent alone may not authorize enrollment. ICH E6(R3), for example, requires consent from the legally acceptable representative when a potential trial participant cannot provide informed consent.

What if the participant regains capacity after the LAR already consented?

OHRP states that when a participant regains or develops capacity to consent, their own consent must be obtained for further research because the LAR's consent is no longer valid as a substitute.

Does pulling away from a procedure count as dissent?

It can. SACHRP recommends that IRBs consider nonverbal actions indicating unwillingness as possible failure to assent or dissent, particularly for participants with limited communication abilities. Researchers should interpret the behavior in context and follow the study's approved dissent procedure.

Can a parent override a child's refusal to participate in research?

Under HHS pediatric research regulations, if the child is capable of assent and the IRB requires assent, the child's dissent ordinarily prevents participation despite parental permission. The IRB may waive assent in specified circumstances, including when an intervention offers an important prospect of direct benefit available only through the research.

Can the investigator decide whose preference is more reasonable?

The investigator should not resolve the dispute merely by choosing the preference they personally consider wiser. The relevant questions concern consent capacity, legal authority, assent or dissent, participant welfare, the approved protocol, and applicable ethics and regulatory requirements.

Should the IRB or ethics committee be contacted every time there is disagreement?

Not necessarily if the approved protocol clearly addresses the situation and the research team can follow it. Consultation becomes particularly important when the disagreement exposes uncertainty about capacity, legal authority, participant safety, assent or dissent, continued participation, or an unanticipated situation not adequately covered by the approved procedures.

Can the representative withdraw the participant from the study?

The representative's authority regarding continued participation and withdrawal depends on applicable law and the research framework. ICH E6(R3) states that when a legally acceptable representative provides consent, relevant activities associated with withdrawal of consent apply to that representative. The participant's own capacity, wishes, and applicable assent or dissent requirements must also be considered.

09 · The Bottom Line

Do not resolve disagreement by assuming either person automatically outranks the other

The Bottom Line

When a participant and representative disagree about research participation, determine the participant's current consent capacity and the representative's legal authority first. A capable participant's own decision should ordinarily govern, while a participant who lacks full consent capacity should still be involved and their assent, dissent, preferences, and welfare considered according to the applicable framework.

If representative permission is required, participant assent alone may not authorize enrollment; conversely, representative permission should not be treated as unlimited authority to disregard meaningful participant dissent. Anticipate these disagreements in the protocol, reassess capacity when it changes, and seek ethics or institutional guidance when the approved rules do not clearly resolve the conflict.

10 · Sources and Further Reading

Authoritative guidance on representative consent, assent, and dissent

11 · Cite this Guide

How to Cite This Guide

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