Best interests must be centred on the person's needs not those of the family

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the importance of not allowing unreasonable family demands for care influence the determination of best interests for a person who lacks capacity.

Residual liberty and the detained mental health patient

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the notion of residual liberty and the need for further authorisation when a detained patient is given treatment for a physical disorder under restraint.

Applying the appropriate treatment test in the Mental Health Act 1983

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers two cases from the Upper Tribunal appeals chamber that clarify the application of the appropriate treatment test in the Mental Health Act 1983.

Capacity, belief and impairment of the mind or brain

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the implications of a recent Court of Protection ruling for nurses who undertake mental capacity assessments.

The provision of aftercare under the Mental Health Act 1983

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses a UK Supreme Court decision that clarified which aftercare body was responsible for funding services under the Mental Health Act 1983.

Managing the interface between two Acts relevant to the deprivation of liberty

Senior Lecturer in Health Law at Swansea University, considers the judgment in Manchester University Hospitals NHS Foundation Trust v JS [2023], which provides much needed clarity on the interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 to authorise a deprivation of liberty.

Body modification and the limits to consent

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the limits to personal autonomy using body modification to illustrate the legal principles of consent.

Deprivation of liberty and children with complex needs: a new specialist court

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the role of the National Deprivation of Liberty Court in authorising care arrangements for children that amount to a deprivation of liberty.

Ensuring the necessity of best interests determinations

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the requirement that acts and decisions made in a person's best interests are a necessary and proportionate interference in their life.

Use of hospital and limitation directions under the Mental Health Act 1983

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the use of hospital and limitation directions when sentencing a person with a mental disorder who has been found guilty of a crime.

Insanity as a defence to a criminal charge

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the availability of the special verdict and common law insanity defence in cases where a person with a mental disorder faces a criminal charge.

Consent and the requirement for accessible information

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the importance of accessible information when obtaining consent from patients.

Assessing cross-cultural performance: beyond just “being there”, revisited

As a review of the literature, this paper highlights how three dimensions - task performance, skill development, and cross-cultural adjustment, have been used to understand cross-cultural performance. With respect to task performance, two criteria should be measured for all those working cross-culturally, including remote or virtual cross-cultural work: (1) how accurately employees read the unique contextual demands of a cross-cultural context and (2) how effectively they respond given the contextual and strategic demands of the task. Focusing on development of cross-cultural competencies as a performance goal we highlight the dimensions most important for assessment, focusing on self- and relationship management competencies. Regarding cross-cultural adjustment, we offer a more precise and nuanced approach which accounts for the person-environment fit in the context of working in cultural novelty.

Nurses at risk of multiple jeopardy over allegations of unprofessional behaviour

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the concept of multiple jeopardy faced by nurses who are accused of unprofessional behaviour.

Leave of absence under the Mental Health Act 1983

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers a recent decision of the Upper Tribunal that limits the use of leave of absence provisions when testing a detained patient's rehabilitation.

Treatment as a whole approach to intervention without consent

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses this provision under the Mental Health Act 1983, to include physical disorders that are increasingly remote from the person's mental disorder.

Determining death in cases of severe brain damage

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers how death is determined in cases of severe brain damage after the High Court order doctors to carry out tests to establish whether a child had died.

Consent, capacity and minors aged 16 and over

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the requirements for consent for minors who are 16 and 17 and whether the Courts have the right to overrule a young person with capacity.

The nurse's legal duty to safely delegate tasks and to follow up the outcome

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers a registered nurse's legal and professional duties when delegating tasks to others.

Concerns over the use of consent to remove a baby into local authority care

Richard Griffith, Head of Health Law and Ethics, School of Health and Social Care, Swansea University, examines voluntary removal of a child and how nurses can ensure that mothers are not coerced into the use of this measure.

Disputes about a person's best interests: Is there a need to go to court?

Richard Griffith, Head of Health Law and Ethics, School of Health and Social Care, Swansea University, considers whether it is necessary to seek an order from the Court of Protection where there is a dispute as to what care and treatment is in the best interests of a patient lacking capacity.

The health professional's duty to warn of preconception risks

Richard Griffith, Head of Health Law and Ethics in the School of Health and Social Care at Swansea University, looks at the law around negligence for disabilities in a child caused by a failure to warn of preconception risks.

Causing or inciting sexual activity with persons who have a mental disorder

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the implications of a Court of Appeal decision that considers the scope of the Sexual Offences Act 2003, section 39, in relation to care workers.

Questioning the validity of an advanced decision to refuse treatment

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers an NHS Foundation Trust's challenge to the validity of a woman's advance decision to refuse treatment in the Court of Protection.

The right to respect for family life, consent, minors and Gillick competence

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the statement made by the UK vaccines minister that healthy 12-15-year-olds could override their parents' decision on coronavirus vaccination.

Article 8 of the European Convention on Human Rights and assisted dying

Richard Griffith, Senior Lecturer in Health Law at Swansea University, continues his series on the articles of the European Convention on Human Rights and considers Article 8 in the context of assisted dying.

How the prohibition of torture under human rights law applies to nursing

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the prohibition of torture under Article 3 of the European Convention on Human Rights (1950) and why it is relevant to nursing.

Errors and omissions in deprivation of liberty authorisation forms

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the impact of errors and omissions in the forms required to lawfully authorise a deprivation of liberty under the Mental Health Act 2005.

How the convention on human rights affects a patient's right to life

Richard Griffith, Senior Lecturer in Health Law at Swansea University, continues his series on human rights and health care and considers the right to life under Article 2 of the European Convention on Human Rights (1950).

Understanding how human rights law affects nursing practice

In the first of a series of articles Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the fundamental nature of human rights and their importance to nursing.

The COVID-19 vaccine and the best interests of a person who lacks capacity

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers two recent cases in the Court of Protection that determined if the COVID-19 vaccine was in the best interests of a person who lacked the mental capacity to decide on immunisation after relatives objected its administration.

Judging mental capacity to engage safely with social media

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses recent cases from the Court of Protection that have focused on a person's mental capacity to engage safely with social media.

Development of a decision support intervention for family members of adults who lack capacity to consent to trials

BACKGROUND

Informed consent is required for participation in clinical trials, however trials involving adults who lack capacity to consent require different enrolment processes. A family member usually acts as a proxy to make a decision based on the patient's 'presumed will', but these decisions can be challenging and families may experience an emotional and decisional burden. Decisions made on behalf of others are conceptually different from those made for ourselves. Innovations have been developed to improve informed consent processes for research, including a number of decision aids, however there are no interventions for proxies who are faced with more complex decisions. This article outlines the development of a novel decision aid to support families making decisions about research participation on behalf of an adult who lacks capacity to consent.

METHODS

Decision support interventions should be developed using rigorous and evidence-based methods. This intervention was developed using MRC guidance for the development of complex interventions, and a conceptual framework for the development and evaluation of decision aids for people considering taking part in a clinical trial. The intervention was informed by a systematic review and analysis of existing information provision. Previous qualitative research with families who acted as proxies enabled the development of a theoretical framework to underpin the intervention. The intervention was iteratively developed with the involvement of lay advisors and relevant stakeholders.

RESULTS

Previous research, theoretical frameworks, and decision aid development frameworks were used to identify and develop the intervention components. The decision aid includes information about the proxy's role and utilises a values clarification exercise and decision support methods to enable a more informed and better-quality decision. Stakeholders, including those representing implementers and receivers of the intervention, contributed to the design and comprehensibility of the decision aid to ensure that it would be acceptable for use.

CONCLUSIONS

Frameworks for the development of decision aids for people considering participating in a clinical trial can be used to develop interventions for family members acting as proxy decision-makers. The decision support tool is acceptable to users. Feasibility testing and outcome measure development is required prior to any evaluation of its effectiveness.

Positive obligations to protect against deprivation of liberty in the community

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the positive obligation to protect vulnerable people from unauthorised deprivations of liberty in various community settings.

The role of the nearest relative in mental health law

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the role of the nearest relative, a statutory friend, appointed for patients detained under the Mental Health Act 1983.

The Consequences of Failing to Discharge the Duty of Candour

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers cases that highlight the consequences for nurses and their employer of failing to discharge their professional and statutory duty of candour.

COVID-19 and the lawfulness of bulk do not attempt resuscitation orders

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the lawfulness of instructions to issue bulk do not attempt resuscitation orders during the COVID19 pandemic.

Constructing authentic decisions: proxy decision making for research involving adults who lack capacity to consent

Research involving adults who lack capacity to consent relies on proxy (or surrogate) decision making. Proxy decisions about participation are ethically complex, with a disparity between normative accounts and empirical evidence. Concerns about the accuracy of proxies' decisions arise, in part, from the lack of an ethical framework which takes account of the complex and morally pluralistic world in which proxy decisions are situated. This qualitative study explored the experiences of family members who have acted as a research proxy in order to develop an understanding of the ethical concepts involved, and the interactions between those concepts. Proxies described a complex process of respecting the wishes and preferences of the person they represented, whist integrating preferences with what they viewed as being in the interests of the person. They aimed to make a decision that was 'best' for the person and protected them from harm; they also aimed to make the 'right' decision, viewed as being authentic to the person's values and life. Decisions were underpinned by the relationship between the person and their proxy, in which both trust and trustworthiness were key. Proxies' decisions, based both on respect for the person and the need to protect their interests, arose out of their dual role as both proxy and carer. The findings raise questions about accounts which rely on existing normative assumptions with a focus on accuracy and discrepancy, and which fail to take account of the requirement for proxies to make authentic decisions that arise out of their caring obligations.

Assessing capacity in cases of fluctuating decision-making ability

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the law on decision-making capacity and recent approaches to the assessment of fluctuating capacity by the Court of Protection.

Holding powers in hospitals under the Mental Health Act 1983

Richard Griffith, Senior Lecturer in Health Law at Swansea University, discusses the holding powers available under the Mental Health Act 1983 and why their use is prone to error.

Negligence, trauma and nervous shock

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers whether nurses who have suffered psychological trauma because of the negligent handling of the COVID-19 outbreak can claim compensation.

Duty, indemnity and immunity during the COVID-19 pandemic

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers arrangements for indemnifying nurses returning to practice in the pandemic, and whether nurses might be given immunity from negligence claims

The law and death

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the legal definition of death and the law relating to the disposal of a body after death.

Using public health law to contain the spread of COVID-19

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers what powers are available to ministers, health and local authorities to minimise the spread of the novel coronavirus and the disease it causes.