4 December 2024

Accessing Unapproved Therapeutic Modalities in the USA and Australia

Accessing Unapproved Therapeutic Modalities in the USA and Australia

Access to unapproved therapeutic modalities represents a critical option for patients facing serious or life-threatening conditions who have exhausted all conventional treatments. Both the United States and Australia have established regulatory frameworks to address these needs, governed by the U.S. Food and Drug Administration (FDA) and Australia’s Therapeutic Goods Administration (TGA), respectively. While these systems, known as Expanded Access (EA) in the U.S. and the Special Access Scheme (SAS) in Australia, provide pathways for compassionate use, they differ significantly in structure and application. Examining these frameworks reveals the complex interplay between regulatory oversight, patient safety, and the ethical considerations of providing investigational therapies outside clinical trials.

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In the United States, Expanded Access programs allow patients to access investigational drugs, biologics, and devices that have not yet been approved for commercial use. These treatments are made available when no satisfactory alternatives exist and typically when a patient cannot participate in a clinical trial. The EA framework is designed to balance patient needs with the rigorous safety standards required to maintain the integrity of ongoing clinical research. Expanded Access is divided into three pathways. Individual Patient Expanded Access focuses on providing investigational drugs to individuals who are ineligible for clinical trials, often in emergency situations. Intermediate-size Patient Population pathways cater to small groups of patients with rare diseases or conditions who may benefit from investigational therapies but are not part of a full trial cohort. The Treatment IND or Treatment Protocol pathway is used for larger populations, particularly in late-stage clinical trials, when preliminary evidence suggests the efficacy of the therapy.

Doctor talking with patient

Eligibility for EA requires patients to have life-threatening conditions, lack other viable treatment options, and demonstrate that the potential benefits of the investigational product outweigh the risks. Furthermore, Expanded Access cannot interfere with ongoing clinical trials aimed at securing regulatory approval for the therapy. The FDA plays a crucial role in ensuring that these conditions are met, often responding to emergency requests within 24 hours. However, the manufacturer must also consent to provide the investigational therapy. This requirement introduces challenges, as manufacturers may decline participation due to concerns about supply limitations, trial integrity, or legal liability.

The United States also offers a parallel framework known as the Right to Try (RtT) Act, introduced in 2018, which allows patients to bypass FDA oversight and request investigational drugs directly from manufacturers. To qualify, the drug must have passed Phase 1 trials and still be under investigation. While this pathway simplifies access for patients, it has been criticized for its reduced safety and reporting requirements, raising concerns about ethical implications and patient risk.

Similarities and differences between EA and RtT Schemes

Eligibility Criteria

In contrast, Australia’s Special Access Scheme provides similar opportunities for patients to access unapproved therapeutic goods, including drugs, biologicals, and medical devices. The SAS addresses situations where conventional treatments are either unavailable or unsuitable, with an emphasis on balancing the need for access with safety considerations. The scheme categorizes access into three groups. Category A applies to patients with life-threatening conditions, allowing immediate access without prior approval from the TGA, as long as the prescriber notifies the authority after initiating treatment. Category B covers patients who do not meet Category A criteria but still require access to unapproved therapies. This category mandates pre-approval and detailed justification from healthcare providers. Category C provides a notification pathway for lower-risk products with established use, streamlining the process for accessing these therapies.

Australia also implements the Authorised Prescriber Scheme (APS), enabling healthcare providers to prescribe unapproved products to multiple patients without seeking individual approvals for each case. This pathway is useful for products with a well-documented history of safe use. Applications under this scheme normally require endorsement from a Human Research Ethics Committee (HREC) or a specialist college, ensuring that ethical standards are upheld. Both the SAS and APS require providers to report on outcomes and adverse events to maintain transparency and accountability.

Comparison of USA and Australia Pathways

One of the significant challenges in both systems is the cost associated with unapproved therapies. In the U.S., investigational products accessed through Expanded Access are typically not covered by insurance, leaving patients to shoulder significant financial burdens. Similarly, Australia does not subsidize these therapies under the Pharmaceutical Benefits Scheme, meaning patients must pay out of pocket. Providers in both countries are required to ensure transparency in cost discussions and obtain informed consent from patients, emphasizing the experimental nature of the treatment and potential risks.

Although these frameworks aim to provide equitable access to investigational therapies, they are not without criticism. In the U.S., the complexities of regulatory compliance, combined with the discretion granted to manufacturers, can limit access to potentially life-saving treatments. Australia’s system, while streamlined in some respects, places a heavy burden on healthcare providers to justify and report on the use of unapproved products, which may delay treatment for patients in urgent need. Additionally, concerns about the potential misuse of these pathways underscore the importance of balancing access with the broader goals of drug development and public health.

Despite these challenges, the compassionate use frameworks in the U.S. and Australia play a crucial role in addressing unmet medical needs. By enabling access to investigational therapies, these programs provide hope for patients facing dire circumstances while generating additional data that may contribute to future regulatory approvals. However, both systems rely on maintaining a delicate balance between patient safety, ethical considerations, and the integrity of ongoing clinical research. As stakeholders navigate these complex pathways, they must prioritize transparent communication, robust oversight, and equitable access to ensure that the benefits of compassionate use outweigh the inherent risks.

About the Authors

Gabriel Kremmidiotis

Gabriel Kremmidiotis

Chief Scientific Officer

Gabriel Kremmidiotis's LinkedIn Profile

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1 In the EU for medicines authorised through the centralised procedure, the medicine in question must be either undergoing clinical trials – in the EU or elsewhere – or have an application for marketing authorisation. Australia’s Special Access Scheme can be used for therapeutic goods are available overseas but not registered or supplied in Australia or for therapeutic goods have been initially provided to patients through a clinical trial, but the trial has ended.

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