Legal capacity, mental capacity and supported decision-making: Report from a panel event

From definition to protection: dilemmas and reflections on the right to refuse treatment for patients with mental disorders in Chinese mainland

Background

The case of "a multimillionaire who was sent to a psychiatric hospital after an argument with his son" has sparked heated debate in the Chinese mainland. This incident is particularly significant as 2023 marks the 10th anniversary of the implementation of the Mental Health Law of the People's Republic of China. The focus of the ongoing debate, as brought to light by the aforementioned case, is centered on the right to refuse treatment for patients with mental disorders.

Methods

This paper is a post-hoc study with a systematic analysis of literature and cases. To ascertain the relationship between the right to refuse treatment for patients with mental disorders and the Mental Health Law, the authors identified key information and data from both official government websites and reliable non-governmental information.

Result

Both literature and practice have proven that the compulsory hospitalization rule under the Mental Health Law is a denial of the right to refuse treatment for patients who are compulsorily hospitalized. In the absence of changes to the law, compulsory hospitalization will inevitably lead to compulsory treatment in the Chinese mainland.

Conclusion

According to the human dignity and self-determination right established in the Constitution of the People's Republic of China, patients who are compulsorily hospitalized have the right to refuse treatment. In the absence of a change in the law, given that no neutral review mechanism has been established for such patients and their treatment in the mainland, setting up an internal review mechanism is a more feasible way of protecting the right to refuse treatment for patients with mental disorders.

Social exclusion as a major outcome domain of psychotic disorders: early predictors, and associations with non-recovery and clinical staging 21 years after a first episode of psychosis

PURPOSE

People with psychotic disorders have high levels of social exclusion; however, little is known about its early predictors. We present a long-term observational cohort study aimed at examining early risk factors for later social exclusion.

METHODS

A total of 243 subjects were assessed at their first psychotic episode for early risk factors including sociodemographic variables, familial risk of major mental disorders, perinatal complications, childhood factors, and adolescent factors and re-assessed after a mean follow-up of 21 years for 12 social exclusion domains: leisure activities, housing, work, income, neighborhood deprivation, educational attainment, physical and mental health, family and social support, legal competence, and discrimination. The ability of risk factors to predict social exclusion was examined using hierarchical linear regression.

RESULTS

Overall social exclusion was independently predicted by low parental socio-economic status, length of follow-up, familial risk of schizophrenia, obstetric complications, neurodevelopmental delay, poor childhood adjustment, childhood adversity, poor adolescent social networks, poor adolescent adjustment, and low premorbid IQ. The model explained 58.2% of the variance in total social exclusion score. Each social exclusion domain was predicted by a different set of variables, which explained between 17.8 and 57.0% of their variance, although low socio-economic status, familial risk of schizophrenia, obstetric complications, childhood adversity, and poor social networks predicted most of the social exclusion domains.

CONCLUSION

Early risk factors strongly predicted later social exclusion. A multifaceted approach to preventing later social exclusion is crucial in people with a first episode of psychosis and early risk factors of social exclusion.

Decision-making by and for adults with impaired capacity: The potential of the Dutch levenstestament

Anticipatory decision-making instruments - continuing powers of attorney and advance directives - are increasingly seen as a promising way forward to enhance the autonomy of adults with impaired capacity by making the adult's voice an influential component of future decisions. However, little is known about the experiences with these instruments in practice. This article presents the findings of an interview study looking at the expectations and experiences of both adults and attorneys with a Dutch anticipatory decision-making instrument, the so-called levenstestament. In order to realise its full potential, anticipatory decision-making instruments, such as the levenstestament, should be embedded in robust, timely and ongoing conversations between adults and attorneys about the adult's (changing) wishes and preferences and the role of the attorney.

Harm Reduction, Humanistic Psychology, and the CRPD

Harm reduction, which was initially developed as a public health response to illicit drug use, has relevance to the prescription of psychotropic medication. Indeed, focusing on the agency of people who use drugs—licit or illicit—facilitates a more authentic engagement with treatment. In this paper, we show how the framework of harm reduction is congruent with the guiding principles of both humanistic psychology and the Convention on the Rights of Persons with Disabilities (CRPD). Moreover, applying a harm reduction model to psychotropic drug use raises awareness that there are risks to taking these medications, risks which are frequently glossed over because of the emphasis on medication adherence and compliance. We provide case examples of organizations that take a person-centered (vs. medication-centered) approach to people experiencing mental health crises. In their unique ways, these organizations embody the principles of harm reduction and the humanistic impulse that informs the CRPD.

Nigeria's mental health and substance abuse bill 2019: Analysis of its compliance with the United Nations convention on the rights of persons with disabilities

Countries are struggling with reconciling their national mental health legislation with the CRPD approach, which stresses equality as the focal point of legislation, policies, and practices that affect people with disabilities. Several failed attempts have been made over the last two decades to update Nigeria's obsolete mental health legislation. The most recent attempt is the Mental Health and Substance abuse Bill 2019, which aims to protect the rights of people with mental health needs. It addresses many areas neglected by previous bills, such as non-discrimination of people with mental and substance use problems in the exercise of their civil, political, economic, social, full employment, religious, educational, and cultural rights. It categorically prohibits the use of seclusion in the treatment of people with mental health problems, makes provision for service users to be members of the Mental health review tribunal and allows for the protection of privacy and confidentiality of information about people with mental health problems. While keeping to most of WHO's recommendations for mental health legislation, the bill diverges from the CRPD's recommendations by allowing forced admission and treatment based on mental capacity, substitute decision-making by legal representatives or closest relatives, and non-prohibition of coercive practices. The bill does not make provisions for advance directives and is silent on informed consent to participate in research. Despite the bill's deficiencies, it would be a significant step forward for the country, whose current mental health legislation is the Lunacy Act of 1958. Although the CRPD has left it unclear how countries, especially low resource countries, should go about creating a workable legal framework, it is clear that all countries are expected to join the current global effort to eliminate, or at least reduce to the barest minimum, the use of coercion in mental health care. We expect that future revisions of this bill will examine its limitations in light of Nigeria's socio-cultural context.

Decisional capacity to consent to treatment and research in patients affected by Mild Cognitive Impairment. A systematic review and meta-analysis

OBJECTIVES

To perform a meta-analysis of clinical studies on the differences in treatment or research decision-making capacity among patients with Mild Cognitive Impairment (MCI), Alzheimer's disease (AD), and healthy comparisons (HCs).

DESIGN

A systematic search was conducted on Medline/Pubmed, CINAHL, PsycINFO, Web of Science, and Scopus. Standardized mean differences and random-effects model were used in all cases.

SETTING

The United States, France, Japan, and China.

PARTICIPANTS

Four hundred and ten patients with MCI, 149 with AD, and 368 HCs were included.

MEASUREMENTS

The studies we included in the analysis assessed decisional capacity to consent by the MacArthur Competence Assessment Tool for Treatment (MAcCAT-T), MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR), Capacity to Consent to Treatment Instrument (CCTI), and University of California Brief Assessment of Capacity to Consent (UBACC).

RESULTS

We identified 109 potentially eligible studies from 1672 records, and 7 papers were included in the meta-analysis. The meta-analysis showed that there was significant impairment in a decision-making capacity in MCI patients compared to the HCs group in terms of Understanding (SMD = -1.04, 95% CI: -1.31 to -0.77, P < 0.001; I² = 52%, P = 0.07), Appreciation (SMD = -0.51, 95% CI: -0.66 to -0.36, P < 0.001; I² = 0%, P = 0.97), and Reasoning (SMD = -0.62, 95% CI: -0.77, -0.47, P < 0.001; I²=0%, P =0.46). MCI patients scored significantly higher in Understanding (SMD = 1.50, 95% CI: 0.91, 2.09, P = 0.01, I² = 78%, P = 0.00001) compared to patients affected by AD.

CONCLUSIONS

Patients affected by MCI are at higher risk of impaired capacity to consent to treatment and research compared to HCs, despite being at lower risk compared to patients affected by AD. Clinicians and researchers need to carefully evaluate decisional capacity in MCI patients providing informed consent.

Medicalisation and participation in legal capacity determinations in Chile

This paper provides an examination of the process used by ordinary courts in Chile when making legal capacity determinations. It provides an up-to-date account of various aspects of law and procedure related to legal capacity in this jurisdiction. Also, by drawing on semi-structured interviews with judges, this paper examines judicial understandings of legal capacity decision-making focusing on problems related to the medicalisation of mental disability and the participation of persons with disabilities in legal capacity procedures.

How should the 'privilege' in therapeutic privilege be conceived when considering the decision-making process for patients with borderline capacity?

Therapeutic privilege (TP) is a defence that may be available to doctors who fail to disclose to the patient relevant information when seeking informed consent for treatment if they have a reasonable belief that providing that information would likely cause the patient concerned serious physical or mental harm. In a landmark judgement, the Singapore Court of Appeal introduced a novel interpretation of TP, identifying circumstances in which it might be used with patients who did not strictly lack capacity but might be inclined to refuse recommended treatments. In this paper, we explore the conceptual and practical challenges of this novel interpretation of TP. We propose that more emphasis should be placed on forms of shared and supported decision-making that foster the autonomy of patients with compromised mental capacity while being mindful of the need to safeguard their well-being. The kind of privilege that doctors might need to invoke is one of time and supportive expertise to ensure a flexible, responsive approach calibrated to the individual patients' needs. The provision of such service would extinguish the need for the novel TP proposed by the Singapore Court of Appeal.

Measuring the impact of revised mental health legislation on human rights in Queensland, Australia

The Convention on the Rights of Persons with Disabilities (2006) (CRPD) has been instrumental for initiating and shaping the reform of mental health legislation in many countries, including the eight Australian jurisdictions. Multiple approaches have been proposed to assess and monitor the compliance of States Parties' mental health legislation with the CRPD, and to evaluate its success in protecting and promoting the human rights of people with disabilities. This article reports an effort to index the impact of legislation on human rights by measuring changes in the prevalence of compulsory treatment orders applied to people with mental illness after the introduction of CRPD influenced mental health legislation in the Australian state of Queensland. We found that despite reforms intended to enhance patient autonomy, the prevalence of compulsory treatment orders increased after implementation of the new legislation. Possible reasons behind this unintended consequence of the legislative reform may include a lack of systematized voluntary alternatives to compulsory treatment, a paternalistic and restrictive culture in mental health services and risk aversion in clinicians and society. We recommend that the reforms in mental health policy as well as legislation need to go further in order to achieve the goals embodied in the human rights framework of the CRPD.

Advance directives: Addressing the obligations of support as part of the right of a person with disabilities to equal recognition before the law?

Depending upon how they are regulated in domestic law, advance directives (ADs) can enable persons to make decisions that have legal effect in the future as directed in the AD. There is some agreement in the academic literature that ADs are a legitimate way of giving effect to the obligations arising from Article 12 (3) of the United Nations Convention on the Rights of Persons with Disabilities to take appropriate measures to provide access by persons with disabilities (PWDs) to the support they may require in exercising their legal capacity. It is the purpose of this article to question when and how ADs address the obligations of support arising from Article 12 (3), concluding that it cannot and should not be assumed that ADs address those obligations only because they embody and give effect to their maker's agency. The article instead highlights the questions that must be posed to obtain legal certainty as to when and how ADs will be a form of Article 12 (3) support. The article also refutes some of the instances in the academic literature when ADs have been presented as support, while offering an account as to how the regulation of ADs should be reconsidered in order to specifically address the obligations arising from Article 12 (3) both when PWDs can and when they cannot communicate their wishes to others.

A Tale of Two Capacities: Including Children and Decisionally Vulnerable Adults in Biomedical Research

The participation of individuals who lack decision-making capacity is essential for advancing genomics research and neuroscience, but raises ethical and legal challenges relating to vulnerability, consent, and exclusion. Capacity differences between populations and individuals, the dynamics of capacity over time, and evolving legal consent and capacity regimes all raise uncertainty for researchers, institutional review boards, and policy makers. We review international ethical and legal best practices for including children and decisionally vulnerable adults in health research. Research ethics norms and literature tend to split such groups into narrow silos, which results in inconsistency and conceptual confusion, or to lump them together, which fails to take into account morally relevant differences. Through a narrative review of international norms, we identify challenges common to both groups, while drawing out distinctions reflecting their opposite capacity trajectories. Our comparison between these two populations clarifies underlying ethical concepts and offers opportunities for critique. Children need protection to foster their long-term autonomy, while decisionally vulnerable adults need to be provided with support in order to exercise their autonomy. This leads to differences in how researchers determine who lacks capacity, who has authority to consent, and what criteria guide such decision-making. We also consider how capacity issues color contemporary research governance debates over broad consent, data protection compliance, data sharing, and the return of individual research results and incidental findings.