Knowledge of the legislation governing proxy consent to treatment and research

Informed proxy consent for ancient DNA research

Embracing the underlying principles and processes of informed proxy consent or relational autonomy consent in human ancient DNA research can transform research.

Unpacking the 'black box of horrendousness': a qualitative exploration of the barriers and facilitators to conducting trials involving adults lacking capacity to consent

Background

Trials involving adults who lack capacity to consent encounter a range of ethical and methodological challenges, resulting in these populations frequently being excluded from research. Currently, there is little evidence regarding the nature and extent of these challenges, nor strategies to improve the design and conduct of such trials. This qualitative study explored researchers’ and healthcare professionals’ experiences of the barriers and facilitators to conducting trials involving adults lacking capacity to consent.

Methods

Semi-structured interviews were conducted remotely with 26 researchers and healthcare professionals with experience in a range of roles, trial populations and settings across the UK. Data were analysed using thematic analysis.

Results

A number of inter-related barriers and facilitators were identified and mapped against key trial processes including during trial design decisions, navigating ethical approval, assessing capacity, identifying and involving alternative decision-makers and when revisiting consent. Three themes were identified: (1) the perceived and actual complexity of trials involving adults lacking capacity, (2) importance of having access to appropriate support and resources and (3) need for building greater knowledge and expertise to support future trials. Barriers to trials included the complexity of the legal frameworks, the role of gatekeepers, a lack of access to expertise and training, and the resource-intensive nature of these trials. The ability to conduct trials was facilitated by having prior experience with these populations, effective communication between research teams, public involvement contributions, and the availability of additional data to inform the trial. Participants also identified a range of context-specific recruitment issues and highlighted the importance of ‘designing in’ flexibility and the use of adaptive strategies which were especially important for trials during the COVID-19 pandemic. Participants identified a need for better training and support.

Conclusions

Researchers encountered a number of barriers, including both generic and context or population-specific challenges, which may be reinforced by wider factors such as resource limitations and knowledge deficits. Greater access to expertise and training, and the development of supportive interventions and tailored guidance, is urgently needed in order to build research capacity in this area and facilitate the successful delivery of trials involving this under-served population.

An under-represented and underserved population in trials: methodological, structural, and systemic barriers to the inclusion of adults lacking capacity to consent

BACKGROUND

There is increasing international recognition that populations included in trials should adequately represent the population treated in clinical practice; however, adults who lack the capacity to provide informed consent are frequently excluded from trials. Addressing the under-representation of groups such as those with impaired capacity to consent is essential to develop effective interventions and provide these groups with the opportunity to benefit from evidence-based care. While the spotlight has been on ensuring only appropriate and justifiable exclusion criteria are used in trials, barriers to the inclusion of adults lacking capacity are multifactorial and complex, and addressing their under-representation will require more than merely widening eligibility criteria. This commentary draws on the literature exploring the inclusion of adults lacking the capacity to consent in research and a number of recent studies to describe the methodological, structural, and systemic factors that have been identified.

MAIN TEXT

A number of potentially modifiable factors contributing to the under-representation of adults lacking the capacity to consent in trials have been identified. In addition to restrictive eligibility criteria, methodological issues include developing appropriate interventions and outcome measures for populations with impaired capacity. Structurally determined factors include the resource-intensive nature of these trials, the requirement for more appropriate research infrastructure, and a lack of interventions to inform and support proxy decision-makers. Systemic factors include the complexities of the legal frameworks, the challenges of ethical review processes, and paternalistic attitudes towards protecting adults with incapacity from the perceived harms of research.

CONCLUSIONS

Measures needed to address under-representation include greater scrutiny of exclusion criteria by those reviewing study proposals, providing education and training for personnel who design, conduct, and review research, ensuring greater consistency in the reviews undertaken by research ethics committees, and extending processes for advance planning to include prospectively appointing a proxy for research and documenting preferences about research participation. Negative societal and professional attitudes towards the inclusion of adults with impaired capacity in research should also be addressed, and the development of trials that are more person-centred should be encouraged. Further work to conceptualise under-representation in trials for such populations may also be helpful.

Healthcare professionals' understanding of the legislation governing research involving adults lacking mental capacity in England and Wales: a national survey

OBJECTIVE

To examine health and social care professionals' understanding of the legislation governing research involving adults lacking mental capacity in England and Wales.

METHODS

A cross-sectional online survey was conducted using a series of vignettes. Participants were asked to select the legally authorised decision-maker in each scenario and provide supporting reasons. Responses were compared with existing legal frameworks and analysed according to their level of concordance.

RESULTS

One hundred and twenty-seven professionals participated. Levels of discordance between responses and the legal frameworks were high across all five scenarios (76%-82%). Nearly half of the participants (46%) provided responses that were discordant in all scenarios. Only two participants (2%) provided concordant responses across all five scenarios.

DISCUSSION

Participants demonstrated a lack of knowledge about the legal frameworks, the locus of authority and the legal basis for decision-making. The findings raise concern about the accessibility of research for those who lack capacity, the ability to conduct research involving such groups and the impact on the evidence base for their care.

CONCLUSION

This is the first study to examine health and social care professionals' knowledge and understanding of the dual legal frameworks in the UK. Health and social care professionals' understanding and attitudes towards research involving adults with incapacity may warrant further in-depth exploration. The findings from this survey suggest that greater training and education is required.

Promoting advance care planning among community-based older adults: A randomized controlled trial

OBJECTIVE

To test an intervention designed to motivate older adults in documenting their healthcare preferences in advance, and to guide proxies in making hypothetical decisions that match those of the older adult.

METHODS

The trial involved 235 older adults, of which half were assisted in communicating their wishes to their proxy. Hypothetical vignettes were used at baseline and twice after the intervention to elicit older adults' preferences and assess their proxy's ability to predict them.

RESULTS

By the end of the trial, 80% of older adults allocated to the experimental group had documented their wishes. Changes over time in mean accuracy scores did not differ between groups for any hypothetical situations, except when limiting the sample to dyads that were highly discordant at baseline.

CONCLUSION

The intervention motivated a large proportion of older adults to express their preferences but had little effect on proxies' ability to predict them.

PRACTICE IMPLICATIONS

Educational tools developed for this study will assist healthcare providers in helping older adults to record their wishes in advance. Clients must be informed of the challenge of making substitute decisions and of the need to discuss the amount of leeway the proxy should have in interpreting expressed wishes.

Could Ethical Tensions in Oral Healthcare Management Revealed by Adults with Intellectual Disabilities and Caregivers Explain Unmet Oral Health Needs? Participatory Research with Focus Groups

BACKGROUND

Cognitively impaired patients often present poor oral health status that may be explained by ethical tensions in oral healthcare management. This participatory study explored such tensions among adults with intellectual disabilities and with caregivers. The second objective was to specify, with caregivers, the points that should be developed in a future study among dentists.

MATERIALS AND METHODS

Three focus groups involving adults with intellectual disabilities, family caregivers and professional caregivers were organized in France in 2013.

RESULTS

The thematic content analysis identified discrepancies between experiences and expectations, which were particularly marked for the dentist's competence and attitudes, the dentist's role in decisions, the dental care management and the French socio-political context.

CONCLUSIONS

These discrepancies could partly explain multiple attempts to find the 'right' dentist or the fact that care was abandoned, and could at least contribute to oral health needs being unmet.

Substitute consent practices in the face of uncertainty: a survey of Canadian researchers in aging

BACKGROUND

In Canada and elsewhere, research policies require researchers to secure consent from a legally authorized representative (LAR) for prospective participants unable to consent. Few jurisdictions, however, offer a clear legislative basis for LAR identification. We investigated Canadian researchers' practices regarding the involvement of decisionally incapacitated participants and tested whether reported practices were associated with (1) researchers' understanding of the law on third-party authorization of research and (2) their comfort with allowing a family member to consent on behalf of an incapacitated relative.

METHODS

We surveyed researchers in aging from four Canadian provinces about their practices with prospective participants deemed incapable of consent, their understanding of relevant law, and comfort with family consent for research purposes. Understanding and comfort were measured with research vignettes that briefly described hypothetical studies in which an adult who lacks the capacity to consent was invited to participate.

RESULTS

Many respondents reported soliciting consent from a family member (45.7% for low-risk studies and 10.7% for serious risks studies), even in jurisdictions where such authority is uncertain at law. Researchers' tendency to solicit family consent was associated with their comfort in doing so, but not with their understanding of the law on substitute consent for research.

CONCLUSIONS

Findings underscore the need to clarify who may authorize an incapacitated adult's participation in research. Meanwhile, people should inform their relatives of their desire to participate or not in research in the event of incapacity, given researchers' tendency to turn to family for consent, even where not supported by law.

Promoting advance planning for health care and research among older adults: a randomized controlled trial

Background

Family members are often required to act as substitute decision-makers when health care or research participation decisions must be made for an incapacitated relative. Yet most families are unable to accurately predict older adult preferences regarding future health care and willingness to engage in research studies. Discussion and documentation of preferences could improve proxies' abilities to decide for their loved ones. This trial assesses the efficacy of an advance planning intervention in improving the accuracy of substitute decision-making and increasing the frequency of documented preferences for health care and research. It also investigates the financial impact on the healthcare system of improving substitute decision-making.

Methods/Design

Dyads (n = 240) comprising an older adult and his/her self-selected proxy are randomly allocated to the experimental or control group, after stratification for type of designated proxy and self-report of prior documentation of healthcare preferences. At baseline, clinical and research vignettes are used to elicit older adult preferences and assess the ability of their proxy to predict those preferences. Responses are elicited under four health states, ranging from the subject's current health state to severe dementia. For each state, we estimated the public costs of the healthcare services that would typically be provided to a patient under these scenarios. Experimental dyads are visited at home, twice, by a specially trained facilitator who communicates the dyad-specific results of the concordance assessment, helps older adults convey their wishes to their proxies, and offers assistance in completing a guide entitled My Preferences that we designed specifically for that purpose. In between these meetings, experimental dyads attend a group information session about My Preferences. Control dyads attend three monthly workshops aimed at promoting healthy behaviors. Concordance assessments are repeated at the end of the intervention and 6 months later to assess improvement in predictive accuracy and cost savings, if any. Copies of completed guides are made at the time of these assessments.

Discussion

This study will determine whether the tested intervention guides proxies in making decisions that concur with those of older adults, motivates the latter to record their wishes in writing, and yields savings for the healthcare system.

Trial Registration

ISRCTN89993391

Ethical boundary-work in the infertility clinic

Infertility practice and reproductive technologies are generally seen as 'controversial' areas of scientific inquiry that raise many complex ethical issues. This paper presents a qualitative study that considered how clinicians constructed the role of the 'ethical' in their everyday practice. We use the concept of ethical boundary-work to develop a theory of 'settled' and 'controversial' morality to illuminate how infertility clinicians drew boundaries between different conceptions of the role ethics played in their practice. An attention to areas of settled morality, usually rendered invisible by their very nature, enables us to see how clinicians manage the 'ethical' in their practice. We argue that by creating a space of 'no-ethics' in their practice--part of a settled morality that does not require articulation--the informants re-appropriate an area of their practice from 'outside' influences and control. Bringing these elements to light can help 'outsiders' to challenge and question these distinctions and therefore bring additional perspectives to debates over morality in the infertility clinic. Illuminating the everyday ethical concerns of infertility clinicians can help direct ethical thinking towards these practical concerns, as well as to more abstract debates.

Are Canadians providing advance directives about health care and research participation in the event of decisional incapacity?

OBJECTIVE

Advance planning for health care and research participation has been promoted as a mechanism to retain some control over one's life, and ease substitute decision making, in the event of decisional incapacity. Limited data are available on Canadians' current advance planning activities. We conducted a postal survey to estimate the frequency with which Canadians communicate their preferences about health care and research should they become incapacitated.

METHOD

We surveyed 5 populations (older adults, informal caregivers, physicians, researchers in aging, and research ethics board members) from Nova Scotia, Ontario, Alberta, and British Columbia. We asked respondents whether they had expressed their preferences regarding a substitute decision maker, health care, and research participation in the event of incapacity.

RESULTS

Two out of 3 respondents (62.0%; 95% CI 59.1% to 64.8%) had been advised to communicate their health care preferences in advance. Oral expression of wishes was reported by 69.1% of respondents (95% CI 66.8% to 71.3%), and written expression by 46.7% (95% CI 44.3% to 49.2%). Among respondents who had expressed wishes in advance (orally or in writing), 91.2% had chosen a substitute decision maker, 80.9% had voiced health care preferences, and 19.5% had voiced preferences regarding research participation. Having been advised to communicate wishes was a strong predictor of the likelihood of having done so.

CONCLUSIONS

Advance planning has increased over the last 2 decades in Canada. Nonetheless, further efforts are needed to encourage Canadians to voice their health care and research preferences in the event of incapacity. Physicians are well situated to promote advance planning to Canadians.

Research on ethics in nursing care for older people: A literature review

The aim of this review was to analyse the empirical studies that focus on ethics in nursing care for older people, scoping the need and areas for further study. A search of the MEDLINE and CINAHL databases (earliest to August 2009) was conducted using the the keywords: ethic* and nursing or care or caring and elderly or aged or older. After a four-stage process, 71 empirical articles were included in the review, with informants ranging from elderly people to relatives, caregivers, managers and students in care settings. The review focusses on the concepts, contexts, methods and validity of these studies. Based on the analysis, the reviewed research seems to be fragmented and multifaceted, focussing on selected issues such as autonomy, self-determination and informed consent. No large research programs or research traditions were found so it was not possible to draw any conclusions about suitable methods, study designs or instruments of measurement for use in this research area.

The representation of healthcare end users' perspectives by surrogates in healthcare decisions: a literature review

BACKGROUND

The representation of end users' perspectives in healthcare decisions requires involvement of their surrogates when the end users, i.e. certain patients, elderly people, children and people with disabilities, are unable to present their views.

AIMS

To review critical issues, and the advantages and disadvantages of involving surrogates in representing end users' perspectives in healthcare decisions.

METHODS

A systematic review of literature published in peer-reviewed journals from 1990 to 2005.

RESULTS

Findings show that surrogates are used widely in health care and that they are necessary to represent end users' perspectives in healthcare decisions when the latter are unable to do so themselves. Critical issues in using surrogates include key ethical, social, cultural, legal and medico-technological factors; ascertaining the best interest of end users; potential conflict of interest; possible biased decisions and the burden on surrogates. The key advantage of surrogate involvement in healthcare decisions is their ability to represent end users' needs, values and wishes. The main disadvantages include potential discrepancies between the decisions and conclusions of surrogates and end users; the failure of surrogates to predict end users' preferences accurately and the lack of certainty that useful information will be obtained through the surrogacy process.

CONCLUSION

This systematic review has revealed that the involvement of surrogates is an additional vital way to represent end users' perspectives in healthcare decisions where for a range of reasons their opinions are unable to be effectively ascertained. However, because of the heterogeneity of surrogates and end users, the selection of appropriate surrogates and deploying surrogate decisions require particularly careful consideration of their value in individual cases; thus, subsequent decision-making must be reviewed on a case-to-case basis to seek to ensure that the best interests, needs and wishes of the end user are fully and accurately represented.

Research ethics issues in geriatric psychiatry

Progress in geriatric psychiatric research may be impeded by lack of attention to collecting evidence relevant to ethical issues. As has been noted for some time, unless proactive work is done to identify, clarify, and remediate ethical challenges (see Table 2 for research directions), deleterious effects on research can result, including research bans, unduly overprotective stances, or inaccurate weighing of risks and benefits of research by review boards. With regard to proxy consent, a number of issues require further study. These include: how state laws address (or fail to address) research involving cognitively impaired individuals and what effects this has on research conduct; how IRBs define and weigh risks and benefits in considering research involving proxy consent; how various stakeholders, including the general public, people with disorders that may impair decision-making capacity, and proxies themselves view proxy consent for research; and to what degree proxies' research decisions reflect what patients themselves would decide. The use of advanced directives as a stand alone method for future consent is fraught with difficulties around adequate informed consent for a particular study; however, future study may clarify if such directives provide surrogates with improved understanding of their relative's overall views of the research enterprise and possibly the types of studies they would be willing to participate in even if they are no longer able to provide their own consent. In depression and suicide research, further work is needed to develop standard procedures for meeting the ethical demands of research while conducting rigorous, crucial research.

Substitute consent for research involving the elderly: a comparison between Quebec and France

The authors first describe the rules enacted in Quebec and France to protect adults with decisional impairment who may be approached by investigators to participate in research protocols. They then present two consecutive postal surveys conducted among Quebec and French researchers in aging and designed to (1) assess their knowledge of the legal provisions implemented to protect decisionally incapable adults, (2) elicit their opinions regarding the person best suited to provide substitute consent for research participation, and (3) document their conduct related to obtaining consent for prospective subjects with impaired decisional capacity. Knowledge of the legislation governing substitute consent was poor, even more so among French than Quebec researchers (p < 0.001). In both samples, the majority of respondents felt that the substitute decision-maker does not have to be legally appointed when the study poses little risk to the participant. Practice data revealed a certain discrepancy between the conduct of researchers in aging and the legal provisions regarding consent for research purposes that prevail in their jurisdictions. These findings underscore the need to better educate clinical investigators about existing measures to protect prospective subjects who lack decisional capacity. They also provide some support for allowing close relatives to consent to research participation on behalf of older adults who are unable to consent by themselves and have not been appointed a legal representative.

Reliability and validity of the evaluation to sign consent measure

PURPOSE

The purpose of this report is to evaluate the reliability and validity of the five-item Evaluation to Sign Consent (ESC), a measure that can guide determination of an older adult's capacity to consent for research.

DESIGN AND METHODS

Information was obtained from 346 nursing home residents from six facilities who were being enrolled into a randomized controlled trial testing a restorative care intervention. In addition to the ESC, the resident's cognitive status and demographic information was obtained.

RESULTS

The average age of the participants was 86.1 +/- 7.3 years; most of the participants were female (84%) and Caucasian (95%). The mean Mini-Mental State Exam score was 18.0 +/- 7.4. A total of 218 residents (63%) did not pass the ESC. According to a Rasch analysis and the inter-rater reliability (r =.81), there was some evidence of reliability and validity with this measure. Logistic regression showed that Items 1 (describing two risks to participation in the study) and 2 (knowing what is associated with participation) had the greatest overall percentage of agreement with the full ESC, and the Mini-Mental State Exam was the only resident-tested variable to predict the results of the ESC.

IMPLICATIONS

This study provides useful information about the ESC. It indicates a reason and a method to move beyond cognitive testing that can more appropriately evaluate the capacity to consent to participate in research.

Design of trials with dying patients: a feasibility study of cluster randomisation versus randomised consent

There is little rigorous evidence to underpin clinical guidelines for palliative care. However, research in palliative care is difficult, especially with dying patients. Consent is a major issue, since staff do not wish to invite dying patients to participate in trials. We, therefore, conducted a feasibility study in two units within the North West Wales NHS Trust. We explored two novel approaches to research in palliative care -cluster randomisation and randomised consent. All patients admitted to the two units during the study were asked for permission to use their data for research. We allocated the two units, at random, to use cluster randomisation or randomised consent for three months, and then to crossover to the other design. Of 24 patients dying during cluster-randomised phases, 13 gave consent on admission to use their data and were, thus, eligible to enter the trial; however, defined eligibility criteria reduced these to six active participants. Of 29 patients dying during randomised consent phases, seven gave consent on admission to use their data; although two were eligible for randomisation, neither entered the trial. We judge that cluster randomisation is the more effective design for research with dying patients. Computer simulation, based on data from 1500 dying patients on the Welsh Integrated Care Pathway, shows that crossover cluster trials need much smaller samples than simple cluster trials. Furthermore, this study has shown that crossover cluster trials are entirely feasible. We recommend a 'definitive' trial to test the crossover design more widely.

Advance Directives for Health Care and Research

Patients suffering from Alzheimer disease and other types of dementia gradually lose their decision-making capacity. Advance directives have been widely promoted as a means to maintain some control over one's life in the event of decisional incompetence. This study used data from a recent postal survey conducted in Quebec, Canada to: 1) estimate the prevalence of formal and informal advance directives for health care and research among community-dwelling older adults presumed free of cognitive deficits; and 2) characterize those who have communicated their preferences regarding health care and research participation. Prevalence rates vary from 7.4% (formal advance directives for research) to 42.3% (informal advance directives for health care). Following multivariate logistic regressions, individuals who have communicated their wishes regarding future health care were found to be older, predominantly women, and to more often know someone with cognitive impairment. Those who have expressed their wishes regarding future research involvement were more inclined to participate in research. They were also more likely to have discussed or written advance directives for health care. The finding that only a small proportion of older adults have discussed future research participation with their families points to the need to find effective ways to promote advance directives for research in this population.