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Karlawish J, Peterson A, Kleid M, Harkins K, Largent EA, Stites SD, Coykendall C, Clapp JT. Caregiver Accounts of Lucid Episodes in Persons With Advanced Dementia. Gerontologist 2024; 64:gnad170. [PMID: 38134428 PMCID: PMC11102005 DOI: 10.1093/geront/gnad170] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Received: 05/23/2023] [Indexed: 12/24/2023] Open
Abstract
BACKGROUND AND OBJECTIVES Paradoxical lucidity is defined as an instance of unexpected lucid behavior in a person who is assumed to be noncommunicative due to a progressive and pathophysiologic dementing process. To inform studies of the prevalence, characteristics, and impact of these behaviors, this interview study examined caregivers' experiences of witnessing paradoxical lucidity. RESEARCH DESIGN AND METHODS Participants were family caregivers of persons living with advanced dementia caused by a neurodegenerative disease producing significant impairments in communication. Semistructured interviews elicited the caregivers' experiences of plausible lucid episodes. Data analysis used a thematic analysis approach. RESULTS Most caregivers reported at least 1 episode of lucidity. Episodes were typically brief. Most involved utterances, but nonverbal behaviors were also common. The mental capacities associated with these behaviors included recognition, awareness of surroundings, recognizing others' emotions, and goal-directed behavior. Most caregivers' reactions were positive. Episodes did not lead to changes in major medical decisions but instead to efforts to either modify or reinforce daily caregiving efforts. DISCUSSION AND IMPLICATIONS Episodes of lucidity were common, a finding seen in other studies. If prevalence studies confirm this, the qualifier "paradoxical" should be eliminated. The caregivers' familiarity with the person living with dementia allowed them to attribute meaning to subtle behaviors that might not otherwise be detected or considered lucid. Clinicians who care for persons with advanced-stage dementia should routinely ask caregivers about episodes of lucid communication and their emotional reactions.
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Affiliation(s)
- Jason Karlawish
- Division of Geriatrics, Department of Medicine, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
- Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Andrew Peterson
- Department of Philosophy, Institute for Philosophy and Public Policy, George Mason University, Fairfax, Virginia, USA
| | - Melanie Kleid
- Division of Geriatrics, Department of Medicine, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Kristin Harkins
- Division of Geriatrics, Department of Medicine, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Emily A Largent
- Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Shana D Stites
- Department of Psychiatry, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Cameron Coykendall
- Division of Geriatrics, Department of Medicine, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
| | - Justin T Clapp
- Department of Medical Ethics and Health Policy, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
- Department of Anesthesiology & Critical Care, Perelman School of Medicine, University of Pennsylvania, Philadelphia, Pennsylvania, USA
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Mackay K, McCusker P. Adult safeguarding legislation: Navigating the borderlands between mental capacity, mental health and social care law and practice. Int J Law Psychiatry 2024; 94:101964. [PMID: 38471328 DOI: 10.1016/j.ijlp.2024.101964] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Subscribe] [Scholar Register] [Received: 08/08/2023] [Revised: 02/13/2024] [Accepted: 02/16/2024] [Indexed: 03/14/2024]
Abstract
Adult safeguarding legislation is contentious because it seeks to protect 'vulnerable' adults who fall between the borderlands of social care, mental health and mental capacity law. As a new and complex area of law and practice, further research on adult safeguarding legislation is required, in particular to consider it efficacy and human rights implications. Utilising a narrative literature review approach this article explores current research evidence on the Adult Support and Protection (Scotland) Act 2007 to consider whether safeguarding powers and duties can achieve a proportionate balance between individual autonomy and the state's duties to protect adults at risk of harm and, if so, how. The findings demonstrate there is a wide range of people who can fall into these borderland areas. For a majority, the use of the Act has made significant positive differences to their lives. However, while supported decision-making was identified it was not found to be consistently applied. In addition, concerns emerged around the adequacy of some professionals' legal knowledge, the consistent upholding of adults' will and preferences, and the commitment to and resourcing of supported decision-making. Notwithstanding these drawbacks, it is concluded that this Act provides vital functions but amendments would enhance alignment with the CRPD.
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Affiliation(s)
- Kathryn Mackay
- University of Stirling, Faculty of Social Science, Room 4S11, Colin Bell Building, Stirling, Scotland FK9 4LA, UK.
| | - Pearse McCusker
- University of Edinburgh, School of Social and Political Science, Room 2.09, Chrystal Macmillan Building, 15a George Square, Edinburgh, Scotland EH8 9LD, UK.
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Potthoff S, Hempeler C, Gather J, Gieselmann A, Vollmann J, Scholten M. Research ethics in practice: An analysis of ethical issues encountered in qualitative health research with mental health service users and relatives. Med Health Care Philos 2023; 26:517-527. [PMID: 37639076 PMCID: PMC10725844 DOI: 10.1007/s11019-023-10169-5] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Accepted: 07/28/2023] [Indexed: 08/29/2023]
Abstract
The ethics review of qualitative health research poses various challenges that are due to a mismatch between the current practice of ethics review and the nature of qualitative methodology. The process of obtaining ethics approval for a study by a research ethics committee before the start of a research study has been described as "procedural ethics" and the identification and handling of ethical issues by researchers during the research process as "ethics in practice." While some authors dispute and other authors defend the use of procedural ethics in relation to qualitative health research, there is general agreement that it needs to be supplemented with ethics in practice. This article aims to provide an illustration of research ethics in practice by reflecting on the ways in which we identified and addressed ethical and methodological issues that arose in the context of an interview study with mental health service users and relatives. We describe the challenges we faced and the solutions we found in relation to the potential vulnerability of research participants, the voluntariness of consent, the increase of participant access and the heterogeneity of the sample, the protection of privacy and internal confidentiality, and the consideration of personal and contextual factors.
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Affiliation(s)
- Sarah Potthoff
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany.
| | - Christin Hempeler
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany
| | - Jakov Gather
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany
- Department of Psychiatry, Psychotherapy and Preventive Medicine, LWL University Hospital, Ruhr University Bochum, Bochum, Germany
| | - Astrid Gieselmann
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany
- Department of Psychiatry and Psychotherapy, Campus Benjamin Franklin, Charité, Berlin, Germany
| | - Jochen Vollmann
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany
| | - Matthé Scholten
- Institute for Medical Ethics and History of Medicine, Ruhr University Bochum, Markstr. 258a, 44799, Bochum, Germany
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Freeman A, Graham T. Discourses of Involuntary Care in the South African Psy-Complex. Cult Med Psychiatry 2023; 47:857-877. [PMID: 36348264 DOI: 10.1007/s11013-022-09809-x] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Accepted: 10/14/2022] [Indexed: 11/09/2022]
Abstract
In 2014, the United Nations Convention on the Rights of Disabilities adopted recommendations advising the replacement of involuntary care with supported care. This has polarised many about how best to provide for People living with Mental Conditions (PLPCs). Notwithstanding the contentions of this debate, we find on a personal discursive level that involuntary care is concealed as a self-evident and unquestionable response to the treatment of PLPCs. This can mean that policy-makers and professionals reproduce approaches to PLPCs uncritically. Considering these complexities, we used Critical Discourse Analysis (CDA) to examine what current norms surround involuntary care in the South African psy-complex, and how these are reproduced. We interviewed nine members of the South African psy-complex, including review board members, psychologists, and psychiatrists, and found several discourses maintaining current psychiatric norms. These include biomedical and techno-disciplinary discourses of treatment, clinico-legal disciplinary and danger discourses, and paternalistic discourses of institutional care. Each of these uniquely highlights the ways in which involuntary care is maintained and normalised, revealing that careful consideration is required to prevent potential human rights violations on behalf of professionals and policy-makers, regardless of whether in involuntary or support paradigms.
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Affiliation(s)
- Alex Freeman
- UNISA Institute for Social and Health Sciences, P.O. Box 1087, Lenasia, 1820, South Africa.
| | - Tanya Graham
- Department of Psychology, University of the Witwatersrand, Johannesburg, South Africa
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Ruck Keene A, Cordone C. Distributed rights protection: The 2000 Hague Convention on the International Protection of Adults and the challenge of securing fundamental rights across borders. Int J Law Psychiatry 2023; 91:101936. [PMID: 37716323 DOI: 10.1016/j.ijlp.2023.101936] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 09/06/2023] [Accepted: 09/08/2023] [Indexed: 09/18/2023]
Abstract
The 2000 Hague Convention on the International Protection of Adults ('the 2000 Convention') entered into force on 1 January 2009, is cast as a private international law convention (i.e. one providing tools to minimise procedural, debates about cross-border matters affecting individuals). However, in little-known, and even less explored fashion, it has significant implications for the exercise of both administrative and legal powers by States over those in their territory in zones that are conventionally held close to the metaphorical heart of State power, for instance those experiencing mental ill health, or with impaired decision-making capacity. Even less explored are the consequences for the individuals at the centre of such situations, in particular as regards the protection of their fundamental rights. As we examine in this paper, focusing on both problems of abduction and of cross-border placement into circumstances of deprivation of liberty, such protection has to be distributed between jurisdictions; we suggest that this is a phenomenon which requires to be addressed in a transparent fashion, so that all concerned can be clear as to the implications for its effectiveness.
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Affiliation(s)
- Alex Ruck Keene
- Barrister, 39 Essex Chambers, King's College London, Dickson Poon School of Law, UK.
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Marcó-García S, Guilera G, Ferrer-Quintero M, Ochoa S, Escuder-Romeva G, Martínez-Mondejar A, Montalbán-Roca V, Del Cacho N, Rubio-Abadal E, Escanilla-Casal A, Martínez-Zambrano F, Balsells-Mejía S, Huerta-Ramos E. The RECAPACITA project: Description of the clinical, neuropsychological and functional profile of a sample of people with severe mental disorder and legal capacity modification in Spain. Int J Law Psychiatry 2023; 88:101874. [PMID: 36963181 DOI: 10.1016/j.ijlp.2023.101874] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Subscribe] [Scholar Register] [Received: 09/23/2022] [Accepted: 02/28/2023] [Indexed: 06/01/2023]
Abstract
Severe mental disorder (SMD) includes people with long-term mental disorders, disability and social dysfunction. The mental capacity evaluation of the people has been a key aspect in legislative systems around the world and different proposals have been made. In countries like Spain, until 2021, the mental capacity of individuals was assessed by means of legal proceedings. In the last years, there has been a notable increase in the number of claims for legal incapacity, but no data are available on the total number of persons with CM, neither on the specific pathologies, or clinical and cognitive profiles. In view of the total absence of data on the profile of people with SMD and modification of capacity, the RECAPACITA study was born. This study includes patients with SMD and CM, as well as those without CM, with the aim to describe exhaustively their clinical, neuropsychological and functional profile of people with SMD and CM, as well as obtaining a basic description of the social environment. OBJECTIVES To describe CM in SMD, to identify clinical diagnoses, clinical severity and neuropsychological deterioration. METHODS Cross-sectional descriptive study. 77 adult patients with SMD and CM, inpatients from the mental health sector of the Parc Sanitari Sant Joan de Déu (Spain), outpatients linked to the community rehabilitation services (CRS), and penitentiary inmates. CM, sociodemographic, clinical, functional and neuropsychological data are collected. RESULTS In the sample, 59.5% present total CM. 74.7% are men (mean: 52.5 years). 87,0% have a diagnosis of schizophrenia. The estimated premorbid IQ is 91.4. The Global Assessment of Functioning (GAF) had a mean of 50.5, the "Clinical Global Impression Scale" (CGI) was 4.6 and Scale Unawareness of Mental Disorders (SUMD) was 9.28. The cognitive results shows a profile with slow proceeding speed (mean scale score: 6.6), good working memory (mean SC: 8.3) and adequate verbal comprehension (mean SC: 7.3). In memory, coding is altered (Pz: -1.9), and long-term spontaneous recall (Pz: -2.3). In abstract reasoning, a slight alteration is obtained (Mean SC: 6), as well as in semantic fluency (Mean SC: 6.3), phonological (Mean SC: 5.9), and inhibitory capacity (Mean SC: 5.7). CONCLUSIONS Most of the sample are men with schizophrenia, with a total MC assumed by a tutelary foundation. They show a moderate alteration in global functioning and clinical global impression, with partial awareness of the disease. They present dysexecutive mild cognitive impairment, with poor memory coding and free retrieval capacity, and a normal IQ, adequate verbal comprehension and working memory. This study is the first to present objective data on the psychiatric, functional and cognitive status of a group of patients with CM. Such research could be a good starting point to address a topic of great interest from the health, social and legal point of view of the CM processes of people with SMD.
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Affiliation(s)
- Silvia Marcó-García
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain; Department of Social Psychology and Quantitative Psychology, Faculty of Psychology, University of Barcelona, 08035 Barcelona, Spain.
| | - Georgina Guilera
- Department of Social Psychology and Quantitative Psychology, Faculty of Psychology, University of Barcelona, 08035 Barcelona, Spain; Group of Invariance Studies for the Measurement and Analysis of Change in the Social and Health Environments (GEIMAC), Institute of Neurosciences (UBNeuro), University of Barcelona, 08035 Barcelona, Spain
| | - Marta Ferrer-Quintero
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain; Biomedical Research in the Mental Health Network (CIBERSAM), Carlos III Health Institute, Madrid, Spain; Department of Social Psychology and Quantitative Psychology, Faculty of Psychology, University of Barcelona, 08035 Barcelona, Spain
| | - Susana Ochoa
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain; Biomedical Research in the Mental Health Network (CIBERSAM), Carlos III Health Institute, Madrid, Spain
| | - Gemma Escuder-Romeva
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain
| | | | | | - Núria Del Cacho
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain
| | | | | | | | - Sol Balsells-Mejía
- Research Promotion and Management Department. Statistical Support, Hospital Sant Joan de Déu (HSJD), Barcelona, Spain
| | - Elena Huerta-Ramos
- Parc Sanitari Sant Joan de Déu, Barcelona, Spain; Etiopathogenesis and treatment of severe mental disorders (MERITT), Sant Joan de Déu Research Institute, Sant Joan de Déu Foundation, Barcelona, Spain; Biomedical Research in the Mental Health Network (CIBERSAM), Carlos III Health Institute, Madrid, Spain.
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Anderson P, Davidson G, Doherty F, Hanna H, Harper C, Lynch G, McClelland R, McKenna C. Legal capacity, develop mental capacity, and impaired mental capacity in children under 16: Neurodevelopment and the law in Northern Ireland. Int J Law Psychiatry 2023; 87:101872. [PMID: 36878126 DOI: 10.1016/j.ijlp.2023.101872] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 10/18/2022] [Revised: 02/12/2023] [Accepted: 02/27/2023] [Indexed: 06/18/2023]
Abstract
When people of any age, despite all possible support being provided, are unable to make a necessary decision, then it is important to have a legal framework which promotes and protects their rights. There is ongoing debate about how this can be achieved, in a non-discriminatory way, for adults but it is also an important consideration for children and young people. In Northern Ireland, the Mental Capacity Act (Northern Ireland) 2016, when fully implemented will provide a non-discriminatory framework for those aged 16 and over. Arguably this addresses discrimination based on disability but continues to discriminate based on age. This article explores some of the possible ways the rights of those aged under 16 could be further promoted and protected. These approaches may include: retaining the current combination of statute law but developing new guidance to inform practice for those aged under 16; codifying Gillick to clarify under what circumstances those aged under 16 can accept, and possibly also refuse, interventions; amend the Children (Northern Ireland) Order 1995 to provide a more comprehensive framework for health and welfare decision making; amend and extend the Mental Capacity Act (Northern Ireland) 2016 to apply to those aged under 16; or develop a new law specifically focused on the emerging capacity of those aged under 16. There are complex issues involved including how to consider emerging or developmental decision-making ability, and the role of those with parental responsibility, but the complexities involved should not prevent these issues being addressed.
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Affiliation(s)
- Phil Anderson
- Belfast Health and Social Care Trust, A Floor, Belfast City Hospital, Lisburn Road, Belfast BT9 7AB, Northern Ireland, United Kingdom
| | - Gavin Davidson
- Queen's University Belfast, University Road, Belfast BT7 1NN, Northern Ireland, United Kingdom.
| | - Francess Doherty
- Belfast Health and Social Care Trust, A Floor, Belfast City Hospital, Lisburn Road, Belfast BT9 7AB, Northern Ireland, United Kingdom
| | - Heather Hanna
- Southern Health and Social Care Trust, Southern College of Nursing, Craigavon Area Hospital, 68 Lurgan Road, Portadown BT63 5QQ, Northern Ireland, United Kingdom
| | - Colin Harper
- Queen's University Belfast, University Road, Belfast BT7 1NN, Northern Ireland, United Kingdom
| | - Gerry Lynch
- Royal College of Psychiatrists Northern Ireland, Innovation Factory, 385 Springfield Road, Forthriver Business Park, Belfast BT12 7DG, Northern Ireland, United Kingdom
| | - Roy McClelland
- Belfast Health and Social Care Trust, A Floor, Belfast City Hospital, Lisburn Road, Belfast BT9 7AB, Northern Ireland, United Kingdom; Queen's University Belfast, University Road, Belfast BT7 1NN, Northern Ireland, United Kingdom
| | - Claire McKenna
- Belfast Health and Social Care Trust, A Floor, Belfast City Hospital, Lisburn Road, Belfast BT9 7AB, Northern Ireland, United Kingdom
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Hustoft K, Larsen TK, Brønnick K, Joa I, Johannessen JO, Ruud T. Psychiatric patients' attitudes towards being hospitalized: a national multicentre study in Norway. BMC Psychiatry 2022; 22:726. [PMID: 36414961 PMCID: PMC9682722 DOI: 10.1186/s12888-022-04362-8] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 05/31/2022] [Accepted: 11/01/2022] [Indexed: 11/24/2022] Open
Abstract
BACKGROUND The aim of the study was to explore patients' attitudes towards voluntary and involuntary hospitalization in Norway, and predictors for involuntary patients who wanted admission. METHODS A multi-centre study of consecutively admitted patients to emergency psychiatric wards over a 3 months period in 2005-06. Data included demographics, admission status (voluntary / involuntary), symptom levels, and whether the patients expressed a wish to be admitted regardless of judicial status. To analyse predictors of wanting admission (binary variable), a generalized linear mixed modelling was conducted, using random intercepts for the site, and fixed effects for all variables, with logit link-function. RESULTS The sample comprised of 3.051 patients of witch 1.232 (40.4%) were being involuntary hospitalised. As expected 96.5% of the voluntary admitted patients wanted admission, while as many as 29.7% of the involuntary patients stated that they wanted the same. The involuntary patients wanting admission were less likely to be transported by police, had less aggression, hallucinations and delusions, more depressed mood, less use of drugs, less suicidality before admission, better social functioning and were less often referred by general practitioners compared with involuntary patients who did not want admission. In a multivariate analysis, predictors for involuntary hospitalization and wanting admission were, not being transported by police, less aggression and less use of drugs. CONCLUSIONS Almost a third of the involuntary admitted patients stated that they actually wanted to be hospitalized. It thus seems to be important to thoroughly address patients' preferences, both before and after admission, regarding whether they wish to be hospitalized or not.
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Affiliation(s)
- Kjetil Hustoft
- Center of Clinical Research in Psychosis, Department of Adult Psychiatry, Stavanger University Hospital, 8100, Jan Johnsen gate 12, N-4068, Stavanger, Norway.
| | - Tor Ketil Larsen
- grid.412835.90000 0004 0627 2891Center of Clinical Research in Psychosis, Department of Adult Psychiatry, Stavanger University Hospital, 8100, Jan Johnsen gate 12, N-4068 Stavanger, Norway ,grid.7914.b0000 0004 1936 7443Department of Clinical Medicine, University of Bergen, Bergen, Norway
| | - Kolbjørn Brønnick
- grid.18883.3a0000 0001 2299 9255Department of Public Health, Faculty of Health Sciences, University of Stavanger, Stavanger, Norway ,grid.412835.90000 0004 0627 2891Centre of Age-related Medicine, Stavanger University Hospital, Stavanger, Norway
| | - Inge Joa
- grid.412835.90000 0004 0627 2891Center of Clinical Research in Psychosis, Department of Adult Psychiatry, Stavanger University Hospital, 8100, Jan Johnsen gate 12, N-4068 Stavanger, Norway ,grid.18883.3a0000 0001 2299 9255Network for Medical Sciences, Faculty of Health, University of Stavanger, 4036 Stavanger, Norway
| | - Jan Olav Johannessen
- grid.412835.90000 0004 0627 2891Center of Clinical Research in Psychosis, Department of Adult Psychiatry, Stavanger University Hospital, 8100, Jan Johnsen gate 12, N-4068 Stavanger, Norway ,grid.18883.3a0000 0001 2299 9255Network for Medical Sciences, Faculty of Health, University of Stavanger, 4036 Stavanger, Norway
| | - Torleif Ruud
- grid.411279.80000 0000 9637 455XDivision of Mental Health Services, Akershus University Hospital, Lørenskog, Norway ,grid.5510.10000 0004 1936 8921Institute of Clinical Medicine, University of Oslo, Oslo, Norway
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Shepherd V, Wood F, Gillies K, O'Connell A, Martin A, Hood K. Recruitment interventions for trials involving adults lacking capacity to consent: methodological and ethical considerations for designing Studies Within a Trial (SWATs). Trials 2022; 23:756. [PMID: 36068637 PMCID: PMC9450319 DOI: 10.1186/s13063-022-06705-y] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Journal Information] [Subscribe] [Scholar Register] [Received: 04/29/2022] [Accepted: 08/30/2022] [Indexed: 12/01/2022] Open
Abstract
BACKGROUND The number of interventions to improve recruitment and retention of participants in trials is rising, with a corresponding growth in randomised Studies Within Trials (SWATs) to evaluate their (cost-)effectiveness. Despite recognised challenges in conducting trials involving adults who lack capacity to consent, until now, no individual-level recruitment interventions have focused on this population. Following the development of a decision aid for family members making non-emergency trial participation decisions on behalf of people with impaired capacity, we have designed a SWAT to evaluate the decision aid in a number of host trials (CONSULT). Unlike in recruitment SWATs to date, the CONSULT intervention is aimed at a 'proxy' decision-maker (a family member) who is not a participant in the host trial and does not receive the trial intervention. This commentary explores the methodological and ethical considerations encountered when designing such SWATs, using the CONSULT SWAT as a case example. Potential solutions to address these issues are also presented. DISCUSSION We encountered practical issues around informed consent, data collection, and follow-up which involves linking the intervention receiver (the proxy) with recruitment and retention data from the host trial, as well as issues around randomisation level, resource use, and maintaining the integrity of the host trial. Unless addressed, methodological uncertainty about differential recruitment and heterogeneity between trial populations could potentially limit the scope for drawing robust inferences and harmonising data from different SWAT host trials. Proxy consent is itself ethically complex, and so when conducting a SWAT which aims to disrupt and enhance proxy consent decisions, there are additional ethical issues to be considered. CONCLUSIONS Designing a SWAT to evaluate a recruitment intervention for non-emergency trials with adults lacking capacity to consent has raised a number of methodological and ethical considerations. Explicating these challenges, and some potential ways to address them, creates a starting point for discussions about conducting these potentially more challenging SWATs. Increasing the evidence base for the conduct of trials involving adults lacking capacity to consent is intended to improve both the ability to conduct these trials and their quality, and so help build research capacity for this under-served population.
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Affiliation(s)
- Victoria Shepherd
- Centre for Trials Research, Cardiff University, 4th floor Neuadd Meirionnydd, Heath Park, Cardiff, CF14 4YS, UK.
| | - Fiona Wood
- Division of Population Medicine, School of Medicine, Cardiff University, 8th floor Neuadd Meirionnydd, Heath Park, Cardiff, UK
- PRIME Centre Wales, School of Medicine, Cardiff University, 8th floor Neuadd Meirionnydd, Heath Park, Cardiff, UK
| | - Katie Gillies
- Health Services Research Unit, University of Aberdeen, Health Sciences Building, Foresterhill, Aberdeen, UK
| | - Abby O'Connell
- Exeter Clinical Trials Unit, University of Exeter, Exeter, UK
| | - Adam Martin
- Academic Unit of Health Economics, Leeds Institute of Health Sciences, University of Leeds, Leeds, UK
| | - Kerenza Hood
- Centre for Trials Research, Cardiff University, 4th floor Neuadd Meirionnydd, Heath Park, Cardiff, CF14 4YS, UK
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Abstract
BACKGROUND Patients with anorexia nervosa (AN) often refuse treatment despite their extremely low nutritional status. This study investigated the methods of assessing the mental capacity of patients with anorexia nervosa (AN) who refuse treatment by physicians in Japan, the United Kingdom (UK), and the United States (USA). It also identified the key points of the assessment. METHODS A questionnaire survey using a case vignette was conducted among physicians (Japan, n = 53; UK, n = 85; USA, n = 85) who treat eating disorders. RESULTS A total of 23% of physicians in Japan, 32% in the UK, and 35% in the USA reported that they believe patients with AN lack the capacity to make appropriate decisions. Physicians who considered patients with AN to have an impaired mental capacity placed significantly more emphasis on the level of psychopathological values, which are values caused by AN (and can be changed by recovery) that affect the ability to be rational, when assessing the mental capacity of these patients. Conversely, physicians who considered patients with AN to have full mental capacity placed significantly more weight on the ability to express a choice or preference. CONCLUSIONS It may be necessary to add the level of psychopathological values to the assessment of the mental capacity in relation to obesity fears and emotional disturbances of Patients with AN because emotions caused by psychopathological values strongly influence decision-making. By considering the level of psychopathological values, it may be feasible to reflect the actual situation during the assessment of the mental capacity of those who refuse AN treatment, thus making it more likely to overcome ethical dilemmas.
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Affiliation(s)
- Yoshiyuki Takimoto
- Department of Biomedical Ethics, Faculty of Medicine, The University of Tokyo, Tokyo, Japan. .,Department of Psychosomatic Medicine and Stress Science, Faculty of Medicine, The University of Tokyo, Tokyo, Japan.
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Takimoto Y. International comparison of physicians' attitudes toward refusal of treatment by patients with anorexia nervosa: a case-based vignette study. J Eat Disord 2022; 10:86. [PMID: 35739606 PMCID: PMC9230079 DOI: 10.1186/s40337-022-00613-x] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.5] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 04/15/2022] [Accepted: 06/19/2022] [Indexed: 11/10/2022] Open
Abstract
BACKGROUND This study investigated the attitudes of physicians in Japan, the United Kingdom (UK), and the United States (US) toward refusal of treatment for anorexia nervosa. METHODS A questionnaire survey was administered to physicians treating patients with eating disorder (Japan, n = 55; UK, n = 84; US, n = 82) to evaluate their treatment strategies for fictitious cases of refusal of treatment for anorexia nervosa. RESULTS For acute patients, 53 (96.3%) physicians in Japan, 65 (77.4%) in the UK, and 54 (65.9%) in the US chose compulsory treatment if the patient's family requested treatment, while 46 (83.6%) physicians in Japan, 53 (63.1%) in the UK, and 47 (57.3%) in the US chose compulsory treatment if the family left the decision to the patient. For severe and enduring anorexia nervosa, 53 (96.3%) physicians in Japan, 62 (73.8%) in the UK, and 57 (69.5%) in the US chose compulsory treatment if the patient's family requested treatment, while 38 (69.1%) physicians in Japan, 56 (66.7%) in the UK, and 55 (67.1%) in the US chose compulsory treatment if the family left the decision to the patient. CONCLUSIONS Physicians in all three countries tended to choose compulsory treatment irrespective of disease duration or whether the patient's family requested treatment or not. This may indicate that medical practitioners value the ethical obligation of beneficence, giving priority to the protection of life. Attitudes toward refusal of treatment during a life crisis tend to vary among medical professionals, particularly if the patient's family does not request treatment.
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Affiliation(s)
- Yoshiyuki Takimoto
- Department of Biomedical Ethics, Faculty of Medicine, The University of Tokyo, Tokyo, Japan. .,Department of Psychosomatic Medicine and Stress Science, Faculty of Medicine, The University of Tokyo, Tokyo, Japan.
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Shepherd V, Hood K, Wood F. Unpacking the 'black box of horrendousness': a qualitative exploration of the barriers and facilitators to conducting trials involving adults lacking capacity to consent. Trials 2022; 23:471. [PMID: 35668460 PMCID: PMC9167903 DOI: 10.1186/s13063-022-06422-6] [Citation(s) in RCA: 11] [Impact Index Per Article: 5.5] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 12/17/2021] [Accepted: 05/24/2022] [Indexed: 11/10/2022] Open
Abstract
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.
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Affiliation(s)
| | - Kerenza Hood
- Centre for Trials Research, Cardiff University, Cardiff, UK
| | - Fiona Wood
- PRIME Centre Wales, Cardiff, UK.,Division of Population Medicine, Cardiff University, Cardiff, UK
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13
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Eyraud B. Capacity Trajectory in the Context of Dementia: A Case of Exercising Rights in Troubled Civil Life. Cult Med Psychiatry 2022; 46:170-93. [PMID: 33751316 DOI: 10.1007/s11013-021-09710-z] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Accepted: 02/05/2021] [Indexed: 10/21/2022]
Abstract
For years, Common law and Civil Code have determined the legal age as majority which defines adulthood, giving a presumption of legal capacity to adults. At this age, all adults are presumed to be capable of making their own decisions, protecting their interests and exercising the rights they enjoy in the acts of their civil life. This legal presumption of capacity structures the life-course of adults and allows them to act and make decisions either in daily life or for exceptional civil acts, for instance, marriage. Domestic laws, including French laws, do provide for certain exceptions, especially for persons suffering from disease or disabilities. The use of substitutive decision-making, or "coercive legal" measures, is increasing. At the same time, these legal substitutive decision-making measures have encountered challenges. The cornerstone Article of International Convention on the Rights of Persons with Disabilities (CRPD) reaffirms the exigence of equal recognition of all persons before the law with equal capacity. The interpretation of this article 12 is subject to considerable controversy. The controversy around CRPD and the paradox between the normative evolution of fundamental rights and the increasing uses of legal substitutive decision-making measures in social practices raise questions about the place of this legal presumption of capacity. In this article, we wish to tackle this controversy by starting with situations where the daily capacity to exercise one's rights becomes an issue for the professional or family circle. What happens when persons seem unable to understand the consequences of their actions or when they behave incomprehensibly according to their close ones? When should others around the person worry about the person's ability to take care of oneself? What happens when a person's ways of functioning change? Is it an indication that his or her state of health is experiencing changes? That the person's needs have evolved? What does this imply for family and friends, especially in terms of actions or substitute decisions? Using the core notion of "capacity trajectory," this article intends to empirically shed light on how rights and legal capacity are exercised in situations of vulnerability. We wish to demonstrate that the presumption of capacity requires certain "conditions of capacity" in practice.
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Abstract
In A Local Authority v JB and A Local Authority v AW, the Court of Appeal and Court of Protection, respectively, had to consider questions regarding decision-making about sexual relationships. This case commentary suggests that both decisions are to be welcomed in many ways, not least in the primacy they give to the role of consent within sexual relationships. However, working through their implications also reveals a number of perplexing legal and practical binds that cannot easily be overcome, and that in fact stem from the way that the Mental Capacity Act 2005 itself works. In light of this, the commentary concludes by suggesting that it is likely that there will be continued dissatisfaction with this area of law and hints that the time may have come to rethink sexual capacity.
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Abstract
A crucial question in relation to support designed to enable the legal capacity of people with mental disabilities concerns when support constitutes undue influence. This article addresses this question in order to facilitate the development of law and policy in England and Wales, by providing a normative analysis of the different approaches to undue influence across decisions about property, contracts, health, finances, and accommodation. These are all potential contexts for supporting legal capacity, and, in doing so, the article compares approaches to undue influence that are rarely considered together. Drawing on the UN Convention on the Rights of Persons with Disabilities, third sector and public body documents, and law in England and Wales, the analysis identifies six models that conceptualise undue influence in terms of: modes of influence; an overborne will; an inference from the situation; an overborne will understood as a mental incapacity; an overborne will in connection with vulnerability; and impaired discursive control. This final approach is a novel proposal for understanding undue influence. The analysis highlights key policy-relevant issues that distinguish the models, and generates a deliberative framework for navigating them, with the 'overborne will', 'inference-based', and 'discursive control' models identified as potentially fitting for the support context.
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Affiliation(s)
- Jillian Craigie
- Centre of Medical Law and Ethics, Dickson Poon School of Law, King’s College London, London, UK
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16
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Abstract
BACKGROUND The assessment of patients' decision-making capacity is ubiquitous in contemporary healthcare. This paper examines the ethics of undisclosed probing of capacity by psychiatrists. The discussion will refer to the law in England and Wales, though the highlighted issues are likely to be relevant in similar jurisdictions. MAIN TEXT Decision-making capacity is a private attribute, and patients may not necessarily be aware that one of their personal abilities is being explored. Routine exploration of capacity has not historically been a part of psychiatric examination, but it is now difficult to avoid during psychiatric interview.Ethical practice and shared decision-making require patients to be aware that their decision-making may be evaluated by the doctor at some point, and the potential implications of an objective professional conclusion of incapacity. Case law directs that patients should be informed about any assessment of their decision-making ability, though the extent to which this has translated into practice is unclear. However, explanation about the assessment may cause a patient to react negatively, which may impede therapeutic engagement and constitute an ethical dilemma. It is argued that in the absence of systemic measures, professionals should retain the discretion to decide whether a particular patient should be informed about the impending probe into their decision-making ability, or not. In the latter instance, concealment of information about the assessment or its purpose should be subject to the caveats and safeguards associated with any recourse to therapeutic exception. CONCLUSION The necessity to mandatorily inform patients about assessment of their capacity introduces a novel ethical dilemma for psychiatrists. The negotiation of this dilemma should not be the prerogative of the clinician, and requires systemic initiatives to ensure universal awareness of patients about the possibility of their capacity being assessed during their journeys through healthcare systems.
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Affiliation(s)
- Sandip Talukdar
- Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Carleton Clinic, Cumwhinton Drive, Carlisle, Cumbria, CA1 3SX, UK.
- School of Social Sciences and Law, University of Manchester, Oxford Road, Manchester, M13 9PL, UK.
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Dahlberg J, Øverstad S, Dahl V, Coman A. Autonomy and consent assessment for electroconvulsive therapy (ECT). A retrospective study of medical records. Int J Law Psychiatry 2021; 77:101716. [PMID: 34130053 DOI: 10.1016/j.ijlp.2021.101716] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 03/17/2021] [Revised: 05/30/2021] [Accepted: 05/31/2021] [Indexed: 06/12/2023]
Abstract
The Norwegian Mental Health Act allows involuntary treatment for patients who lack consent capacity, however it allows only administration of pharmaceutical treatment and nutrition and not ECT. In lack of specific regulations, the legal access to ECT without valid consent has been grounded on the general rule of necessity in the Norwegian Penal code. This restriction and lack of legal regulation has implications for patients' rights and legal security. The study's aim was to assess the documented consent provided by patients for electroconvulsive therapy (ECT), whether ECT was administered without valid consent or under coercion, and the documented reasons, and ultimately compare practice with the legal requirements. We analysed systematically all the relevant medical records for hospitalised patients and outpatients receiving ECT during 2011-2016. We categorized data from these two groups into seven defined categories describing the attitude and quality of the consents to the ECT (or lack thereof). 378 patients received 498 ECT series´. The noted consents varied from treatment based on request (54 treatments), consent upon recommendation (209 treatments), consent after hesitation (88 treatments), consent presumed or noted without specification (114 treatments), to no consent (21 treatments) whereof the majority with documented coercion applied (19 treatments). All cases of ECT without consent referred to a "plea of necessity". The remaining treatments (12) lacked notifications specifying the consent (or attitude) expressed. Specific notes on the patient's capacity to consent for the respective ECT were generally lacking. This study indicates a large spread in patients´ acceptance and valid consent to ECT. The main reason for administering ECT without consent and/or against patients' will was for life-saving reasons. Such treatments were justified legal under a plea of necessity in the Penal Code or lacked noted legal justification. The legal vacuum for ECT without a valid consent needs to be addressed as this kind of disputed treatment is used in some cases.
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Affiliation(s)
- Jørgen Dahlberg
- University of Oslo, Faculty of Medicine, Centre for Medical Ethics, Oslo, Norway; University of Oslo, Faculty of Medicine, Institute of Clinical Medicine, Lørenskog, Norway; Akershus University Hospital, Department of Anaesthesiology, Lørenskog, Norway
| | - Siri Øverstad
- University of Oslo, Faculty of Medicine, Centre for Medical Ethics, Oslo, Norway; Østfold County Hospital, Psychiatric Clinic, Gralum, Norway
| | - Vegard Dahl
- University of Oslo, Faculty of Medicine, Institute of Clinical Medicine, Lørenskog, Norway; Akershus University Hospital, Department of Anaesthesiology, Lørenskog, Norway
| | - Alina Coman
- University of Oslo, Faculty of Medicine, Centre for Medical Ethics, Oslo, Norway.
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18
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Haberstroh J, Tesky VA, Pantel J. [Capacity to consent of people with dementia : Insights into the S2k AWMF guidelines 108-001]. Nervenarzt 2021; 92:721-728. [PMID: 34181051 DOI: 10.1007/s00115-021-01158-1] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 10/21/2022]
Abstract
People with dementia often require medical and nursing care and are regularly confronted with the need to make decisions in this respect; however, in practice uncertainty often exists as to whether a person with dementia is capable of providing consent, what procedures should be used to obtain informed consent, how to provide the necessary information and how capacity to consent can be assured. By providing structured practical recommendations, the S2k guidelines "Consent of persons with dementia to medical treatment" (coordinated by the Association of the Scientific Medical Societies of Germany, AWMF, registration number 108-001) provide a first attempt to summarize and update the relevant medical, legal, ethical and psychological requirements that should be satisfied in this respect. This article enables insights into the guidelines and an overview of the most important recommendations.
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Affiliation(s)
- Julia Haberstroh
- Psychologische Alternsforschung, Fakultät II - Dep. Erziehungswissenschaft-Psychologie, Institut für Psychologie, Universität Siegen, Adolf-Reichwein-Str. 2a, 57068, Siegen, Deutschland.
| | - Valentina A Tesky
- Institut für Allgemeinmedizin, Goethe-Universität Frankfurt, Frankfurt am Main, Deutschland
| | - Johannes Pantel
- Institut für Allgemeinmedizin, Goethe-Universität Frankfurt, Frankfurt am Main, Deutschland
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19
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Haberstroh J, Tesky VA, Pantel J. [Capacity to consent of people with dementia : Insights into the S2k AWMF guidelines 108-001]. Z Gerontol Geriatr 2020; 54:167-175. [PMID: 33289856 DOI: 10.1007/s00391-020-01820-4] [Citation(s) in RCA: 2] [Impact Index Per Article: 0.5] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Received: 09/16/2020] [Accepted: 10/19/2020] [Indexed: 11/28/2022]
Abstract
People with dementia often require medical and nursing care and are regularly confronted with the need to make decisions in this respect; however, in practice uncertainty often exists as to whether a person with dementia is capable of providing consent, what procedures should be used to obtain informed consent, how to provide the necessary information and how capacity to consent can be assured. By providing structured practical recommendations, the S2k guidelines "Consent of persons with dementia to medical treatment" (coordinated by the Association of the Scientific Medical Societies of Germany, AWMF, registration number 108-001) provide a first attempt to summarize and update the relevant medical, legal, ethical and psychological requirements that should be satisfied in this respect. This article enables insights into the guidelines and an overview of the most important recommendations.
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Affiliation(s)
- Julia Haberstroh
- Psychologische Alternsforschung, Fakultät II - Dep. Erziehungswissenschaft-Psychologie, Institut für Psychologie, Universität Siegen, Adolf-Reichwein-Str. 2a, 57068, Siegen, Deutschland.
| | - Valentina A Tesky
- Institut für Allgemeinmedizin, Goethe-Universität Frankfurt, Frankfurt am Main, Deutschland
| | - Johannes Pantel
- Institut für Allgemeinmedizin, Goethe-Universität Frankfurt, Frankfurt am Main, Deutschland
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20
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Kelly BD, Drogin E, McSherry B, Donnelly M. Mental health, mental capacity, ethics, and the law in the context of COVID-19 (coronavirus). Int J Law Psychiatry 2020; 73:101632. [PMID: 33045534 PMCID: PMC7528736 DOI: 10.1016/j.ijlp.2020.101632] [Citation(s) in RCA: 3] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 05/16/2023]
Abstract
The emergence of the COVID-19 (coronavirus) pandemic in late 2019 and early 2020 presented new and urgent challenges to mental health services and legislators around the world. This special issue of the International Journal of Law and Psychiatry explores mental health law, mental capacity law, and medical and legal ethics in the context of COVID-19. Papers are drawn from India, Australia, the United Kingdom, Ireland, Germany, Portugal, and the United States. Together, these articles demonstrate the complexity of psychiatric and legal issues prompted by COVID-19 in terms of providing mental health care, protecting rights, exercising decision-making capacity, and a range of other topics. While further work is needed in many of these areas, these papers provide a strong framework for addressing key issues and meeting the challenges that COVID-19 and, possibly, other outbreaks are likely to present in the future.
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Affiliation(s)
- Brendan D Kelly
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin, 24, D24 NR0A, Ireland.
| | - Eric Drogin
- Department of Psychiatry, Harvard Medical School, Boston, MA, USA
| | - Bernadette McSherry
- Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Carlton, Vic, 3056, Australia
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21
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Wied TS, Poth A, Pantel J, Oswald F, Haberstroh J. How do dementia researchers view support tools for informed consent procedures of persons with dementia? Z Gerontol Geriatr 2020; 54:667-675. [PMID: 32951072 PMCID: PMC8551133 DOI: 10.1007/s00391-020-01779-2] [Citation(s) in RCA: 3] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 05/30/2020] [Accepted: 08/19/2020] [Indexed: 11/25/2022]
Abstract
The study aimed to assess how dementia researchers view eight support tools that have been defined to enhance informed consent (IC) procedures for people with dementia (PwD). In an online survey, 19 dementia researchers from Germany and Portugal evaluated the tools in terms of 4 implementation criteria. Overall, they all had a very positive attitude towards the support tools, whereby the tools person-centered attitude of the researcher and elaborated plain language were the most highly rated of the eight tools. Our findings also indicated that familiar support tools were assessed more favorably than those that were previously unknown. Overall, the results of this study showed that the participating dementia researchers were open to the use of decision support measures in PwD and were willing to apply the support tools in practice.
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Affiliation(s)
- Theresa S Wied
- Institute of General Practice in Frankfurt am Main, Goethe University Frankfurt, Frankfurt, Germany
| | - Aoife Poth
- Interdisciplinary Ageing Research (IAW), Goethe University Frankfurt, Frankfurt, Germany
| | - Johannes Pantel
- Institute of General Practice in Frankfurt am Main, Goethe University Frankfurt, Frankfurt, Germany
| | - Frank Oswald
- Interdisciplinary Ageing Research (IAW), Goethe University Frankfurt, Frankfurt, Germany
| | - Julia Haberstroh
- Psychological Aging Research (PAR), Faculty II-Education, Architecture, Arts, University of Siegen, Adolf-Reichwein-Str. 2a, 57068, Siegen, Germany.
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22
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Vicary S, Stone K, McCusker P, Davidson G, Spencer-Lane T. "It's about how much we can do, and not how little we can get away with": Coronavirus-related legislative changes for social care in the United Kingdom. Int J Law Psychiatry 2020; 72:101601. [PMID: 32889420 PMCID: PMC7306708 DOI: 10.1016/j.ijlp.2020.101601] [Citation(s) in RCA: 2] [Impact Index Per Article: 0.5] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 05/17/2020] [Revised: 06/14/2020] [Accepted: 06/15/2020] [Indexed: 05/28/2023]
Abstract
The coronavirus pandemic, referred to here as Covid-19, has brought into sharp focus the increasing divergence of devolved legislation and its implementation in the United Kingdom. One such instance is the emergency health and social care legislation and guidance introduced by the United Kingdom Central Government and the devolved Governments of Wales, Scotland and Northern Ireland in response to this pandemic. We provide a summary, comparison and discussion of these proposed and actual changes with a particular focus on the impact on adult social care and safeguarding of the rights of citizens. To begin, a summary and comparison of the relevant changes, or potential changes, to mental health, mental capacity and adult social care law across the four jurisdictions is provided. Next, we critique the suggested and actual changes and in so doing consider the immediate and longer term implications for adult social care, including mental health and mental capacity, at the time of publication.several core themes emerged: concerns around process and scrutiny; concerns about possible changes to the workforce and last, the possible threat on the ability to safeguard human rights. It has been shown that, ordinarily, legislative provisions across the jurisdictions of the UK are different, save for Wales (which shares most of its mental health law provisions with England). Such divergence is also mirrored in the way in which the suggested emergency changes could be implemented. Aside from this, there is also a wider concern about a lack of parity of esteem between social care and health care, a concern which is common to all. What is interesting is that the introduction of CVA 2020 forced a comparison to be made between the four UK nations which also shines a spotlight on how citizens can anticipate receipt of services.
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Webb P, Davidson G, Edge R, Falls D, Keenan F, Kelly B, McLaughlin A, Montgomery L, Mulvenna C, Norris B, Owens A, Shea Irvine R. Key components of supporting and assessing decision making ability. Int J Law Psychiatry 2020; 72:101613. [PMID: 32889426 DOI: 10.1016/j.ijlp.2020.101613] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 04/23/2020] [Revised: 07/15/2020] [Accepted: 07/18/2020] [Indexed: 06/11/2023]
Abstract
People's ability to make decisions may be impaired for a wide range of reasons, including by mental health problems and learning disabilities. Individual autonomy, the ability to make decisions about our own lives, is a fundamental tenet of democratic societies. This has been reinforced by laws governing substitute and supported decision making and most significantly by the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Article 12 of the UNCRPD requires everyone to have equal recognition before the law and, to achieve this, the necessary support and safeguards must be available. There has been considerable debate about the important theoretical and philosophical issues involved and growing research about the practice complexities of supporting and assessing decision making ability or mental capacity. This article aims to present some of the key components of the support and assessment process to inform further service development and training in this area. The key components were identified as part of a qualitative, participatory research project which explored the decision making experiences of people with mental health problems and/or learning disabilities. The conventional approach to the assessment of capacity is to consider four main components, whether the person is able to: understand, retain, use and weigh, and communicate the information needed to make the decision at that time. The findings from this research study suggest that people generally don't usually talk about their experiences of decision making in terms of these four components and approaches to supporting people to make decisions don't necessarily break the support down to explicitly address the assessment process. However, considering support for all aspects of the functional test may be helpful to ensure it is as comprehensive as possible. The challenges involved in providing effective support and assessing decision making ability are discussed and the article concludes with some of the implications for training, service development and practice.
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Affiliation(s)
- Paul Webb
- Praxis Care, 25-31 Lisburn Road, Belfast, Northern Ireland BT9 7AA, UK.
| | - Gavin Davidson
- Queen's University Belfast, Northern Ireland BT7 1NN, UK.
| | - Rosalie Edge
- Mencap NI, 5 School Road, Newtownbreda, Belfast, Northern Ireland BT8 6BT, UK.
| | - David Falls
- Praxis Care, 25-31 Lisburn Road, Belfast, Northern Ireland BT9 7AA, UK.
| | - Fionnuala Keenan
- Praxis Care, 25-31 Lisburn Road, Belfast, Northern Ireland BT9 7AA, UK.
| | - Berni Kelly
- Queen's University Belfast, Northern Ireland BT7 1NN, UK.
| | | | | | - Christine Mulvenna
- Mencap NI, 5 School Road, Newtownbreda, Belfast, Northern Ireland BT8 6BT, UK.
| | - Barbara Norris
- Mencap NI, 5 School Road, Newtownbreda, Belfast, Northern Ireland BT8 6BT, UK.
| | - Aine Owens
- Mencap NI, 5 School Road, Newtownbreda, Belfast, Northern Ireland BT8 6BT, UK.
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Stephenson LA, Gergel T, Ruck Keene A, Rifkin L, Owen G. The PACT advance decision-making template: preparing for Mental Health Act reforms with co-production, focus groups and consultation. Int J Law Psychiatry 2020; 71:101563. [PMID: 32768120 PMCID: PMC7435693 DOI: 10.1016/j.ijlp.2020.101563] [Citation(s) in RCA: 16] [Impact Index Per Article: 4.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Received: 03/11/2020] [Revised: 04/17/2020] [Accepted: 04/17/2020] [Indexed: 05/29/2023]
Abstract
BACKGROUND Advance decision making (ADM) in mental health is supported by stakeholders but faces significant barriers. These must be overcome, not least to support the UK government's commitment to introduce statutory mental health ADM in England and Wales. AIMS To build understanding and address the gap between aspirations for ADM and actuality, with feasible co-produced ADM resources. METHODS We used focus groups and consultation to explore experience and views of stakeholders on ADM processes and materials. Discussions included feedback on an ADM template which was adapted accordingly throughout the research process. RESULTS Between September 2017 and December 2019, 94 individuals, representing stakeholders advised on design and process of ADM, alongside wider discussion at stakeholder events. Collaborative ADM was universally supported. Valued outcomes were diverse and combining aspirations with practicality required resolving dilemmas. A prototype template and guidance, the PACT (Preferences and Advance decisions for Crisis and Treatment) was co-produced, designed to help manage fluctuating mental capacity through collaborative decision making. The PACT enables direct engagement with medico-legal frameworks, with provision to facilitate person-centred assessments, treatment refusals and requests. Resources including supported engagement and cross-agency awareness and accessibility were seen as essential. CONCLUSION Our research confirms high stakeholder motivation to engage in ADM is hampered by multiple barriers. We identified enabling conditions for ADM and co-produced an ADM template and guidance which supports achievement of a range of valued outcomes. Further developments to support and evaluate the process of implementation are now needed to prepare for statutory change.
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Affiliation(s)
- Lucy A Stephenson
- Institute of Psychiatry, Psychology and Neuroscience, King's College London, United Kingdom.
| | - Tania Gergel
- Institute of Psychiatry, Psychology and Neuroscience, King's College London, United Kingdom
| | - Alex Ruck Keene
- Institute of Psychiatry, Psychology and Neuroscience, King's College London, 39 Essex Chambers, United Kingdom
| | - Larry Rifkin
- South London and Maudsley NHS Foundation Trust, United Kingdom
| | - Gareth Owen
- Institute of Psychiatry, Psychology and Neuroscience, King's College London, United Kingdom
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Dahlberg J, Eriksen C, Robertsen A, Beitland S. Barriers and challenges in the process of including critically ill patients in clinical studies. Scand J Trauma Resusc Emerg Med 2020; 28:51. [PMID: 32513204 PMCID: PMC7276963 DOI: 10.1186/s13049-020-00732-x] [Citation(s) in RCA: 8] [Impact Index Per Article: 2.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 12/09/2019] [Accepted: 04/28/2020] [Indexed: 11/30/2022] Open
Abstract
Background Clinical research in severely ill or injured patients is required to improve healthcare but may be challenging to perform in practice. The aim of this study was to analyse barriers and challenges in the process of including critically ill patients in clinical studies. Methods Data from critically ill patients considered for inclusion in an observational study of venous thromboembolism in Norway were analysed. This included quantitative and qualitative information from the screening log, consent forms and research notes. Results Among 279 eligible critically ill patients, 204 (73%) were omitted from the study due to challenges and barriers in the inclusion process. Reasons for omission were categorised as practical in 133 (65%), medical in 31 (15%), and legal or ethical in 40 (20%) of the patients. Among 70 included patients, 29 (41%) consents were from patients and 41 (59%) from their next of kin. Several challenges were described herein; these included whether patients were competent to give consent, and which next of kin that should represent the patient. Furthermore, some included patients were unable to recall what they have consented, and some appeared unable to separate research from treatment. Conclusions Barriers and challenges in the inclusion process led to the omission of near three out of four eligible patients. This analysis provided information about where the problem resides and may be solved. The majority of challenges among included patients were related to issues of autonomy and validity of consent. Trial registration ClinicalTrials.gov (NCT03405766).
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Affiliation(s)
- Jørgen Dahlberg
- Institute of Clinical Medicine, University of Oslo, Oslo, P.O.Box 1072 Blindern, 0316, Oslo, Norway. .,Department of Anaesthesiology, Akershus University Hospital, Lørenskog, Norway.
| | - Camilla Eriksen
- Institute of Clinical Medicine, University of Oslo, Oslo, P.O.Box 1072 Blindern, 0316, Oslo, Norway
| | - Annette Robertsen
- Department of Anaesthesiology, Oslo University Hospital, Oslo, Norway.,Department of Research, Innovation and Education, Oslo University Hospital, Oslo, Norway
| | - Sigrid Beitland
- Institute of Clinical Medicine, University of Oslo, Oslo, P.O.Box 1072 Blindern, 0316, Oslo, Norway.,Department of Research, Innovation and Education, Oslo University Hospital, Oslo, Norway
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Shepherd V. An under-represented and underserved population in trials: methodological, structural, and systemic barriers to the inclusion of adults lacking capacity to consent. Trials 2020; 21:445. [PMID: 32471488 PMCID: PMC7257506 DOI: 10.1186/s13063-020-04406-y] [Citation(s) in RCA: 36] [Impact Index Per Article: 9.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Journal Information] [Subscribe] [Scholar Register] [Received: 03/04/2020] [Accepted: 05/11/2020] [Indexed: 01/11/2023] Open
Abstract
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.
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Abstract
This article analyses the role of evidence in resolving Court of Protection proceedings, drawing on qualitative data obtained from observations of the Court of Protection, a review of Court of Protection case files and interviews with social workers. It is argued that there is a hierarchy of professional evidence in mental capacity law. Psychiatric evidence is at the top of this hierarchy, whereas social work evidence is viewed as a less persuasive form of knowledge about mental capacity. The article argues that this is because mental capacity law views psychiatric evidence as a form of objective and technical expertise about capacity, whereas social work evidence is viewed as a form of subjective, experiential knowledge. In challenging this hierarchy, it is instead argued that mental capacity law should place greater weight on experiential knowledge emanating from a relationship with the subject of the proceedings, rather than elevating the status of psychiatric evidence about mental capacity.
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Affiliation(s)
- Jaime Lindsey
- Essex Law School, University of Essex, Colchester, UK
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28
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Pritchard-Jones L. Unspoken and unthinkable: The older disabled body in judicial discourse. Int J Law Psychiatry 2020; 68:101525. [PMID: 32033696 DOI: 10.1016/j.ijlp.2019.101525] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 07/10/2019] [Revised: 11/18/2019] [Accepted: 11/22/2019] [Indexed: 06/10/2023]
Abstract
While much has been said about gendered bodies in legal discourse, as yet relatively little has been written about older bodies. This is surprising given the fact older people are statistically far more likely to be the subjects of certain areas of law which constrain and regulate bodily autonomy, such as mental health and capacity law. This paper uses discourse analysis to understand the way in which older disabled bodies appear in judicial discourse. It is argued that these bodies are often understood as abject, which in turn is used to legitimize certain problematic legal interventions.
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Weston J. Managing mental incapacity in the 20th century: A history of the Court of Protection of England & Wales. Int J Law Psychiatry 2020; 68:101524. [PMID: 32033695 PMCID: PMC7026664 DOI: 10.1016/j.ijlp.2019.101524] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Figures] [Subscribe] [Scholar Register] [Received: 09/10/2019] [Revised: 11/08/2019] [Accepted: 11/09/2019] [Indexed: 06/10/2023]
Abstract
This article explores the history of the Court of Protection of England & Wales (CoP) over the twentieth century. The CoP, which is responsible for making financial and welfare decisions on behalf of those deemed incapable of doing so themselves, presently faces a rapidly growing caseload, and considerable scrutiny and critique. Such close attention to its work may be new, but many of the issues it faces have deep roots. Using practitioners' texts, judgements, and the archives of the CoP and the Lord Chancellor's Office, I review the evolution of the CoP in terms of its structure and caseload, its decisions regarding incapacity, its efforts to manage the affairs of those found incapable, and its long-term survival. This reveals the origins of many of the issues it faces today, the different anxieties and approaches that have animated its work in the past, the ways in which approaches to incapacity have changed, and the value of a historical perspective.
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Affiliation(s)
- Janet Weston
- Centre for History in Public Health, London School of Hygiene and Tropical Medicine, 15 -17 Tavistock Place, London WC1H 9SH, UK.
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Russell S, Jenkins D, Halson S, Kelly V. Changes in subjective mental and physical fatigue during netball games in elite development athletes. J Sci Med Sport 2019; 23:615-620. [PMID: 31883778 DOI: 10.1016/j.jsams.2019.12.017] [Citation(s) in RCA: 22] [Impact Index Per Article: 4.4] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Received: 10/01/2019] [Revised: 12/16/2019] [Accepted: 12/17/2019] [Indexed: 01/01/2023]
Abstract
OBJECTIVES To assess the magnitude of changes in, and relationships between, physical and mental fatigue pre-to-post match in elite development netballers. DESIGN Observational. METHODS Twelve female netballers (21.3±2.9 years) competing in the Australian Netball League reported perceptual measures of mental and physical fatigue pre- and post-match on 12 separate competition occasions. Minutes played, to allow for calculation of weighted changes (ratings proportional to playing time), positional groups and performance analysis variables were also assessed. RESULTS Post-match ratings were higher (p<0.01) than pre-match for both mental (pre: 31.02±19.28; post: 44.73±24.47) and physical fatigue (pre: 28.86±15.37; post: 47.21±24.67). The correlation coefficient between change in mental and physical fatigue (r=0.37, p<0.01) revealed a shared variance of 13.9%. Acute changes in mental fatigue were related to minutes played (r=0.32, p<0.01) as was change in physical fatigue (r=0.59, p<0.01). No differences in change in mental fatigue were found between positional groups (p=0.07) though change in physical fatigue was higher for shooters compared to defenders (p<0.05). Performance variables revealed no relationships with mental or physical fatigue, with the exception of turnover number with both post-match weighted physical (r= -0.23, p<0.01) and weighted-change in physical fatigue (r=-0.16, p<0.05). CONCLUSIONS Mental and physical fatigue were found to increase across netball matches in elite development athletes. Mental fatigue emerged as a largely separate construct to physical fatigue.
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Affiliation(s)
- Suzanna Russell
- School of Human Movement and Nutrition Sciences, The University of Queensland, Australia; Queensland Academy of Sport, Australia; High Performance Department, Netball Australia, Australia.
| | - David Jenkins
- School of Human Movement and Nutrition Sciences, The University of Queensland, Australia; School of Health and Sport Sciences, University of Sunshine Coast, Australia
| | - Shona Halson
- School of Behavioural and Health Sciences, Australian Catholic University, Australia
| | - Vincent Kelly
- School of Human Movement and Nutrition Sciences, The University of Queensland, Australia; School of Exercise and Nutrition Sciences, Queensland University of Technology, Australia
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Noblett K. Clinical implications of self-neglect among patients in community settings. Br J Community Nurs 2019; 24:524-526. [PMID: 31674232 DOI: 10.12968/bjcn.2019.24.11.524] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Indexed: 11/11/2022]
Abstract
The consequences of self-neglect can be wide-reaching and devastating, not only for patients themselves but also for their wider community, including assisting health practitioners and social care staff. Supporting patients in the context of self-neglect requires extensive multi-agency collaboration in order to gain a full understanding and a workable management strategy for the individual. Because community nurses see patients in their own homes, they are well placed to identify and address self-neglect. This article explores the definition, signs and causes of self-neglect, with issues of particular relevance for community nursing staff. The understanding and assessment of mental capacity, which is often complex and challenging, is also discussed, as well as the involvement of the safeguarding team where necessary.
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Affiliation(s)
- Karen Noblett
- Community Matron, Bridgewater Community Healthcare NHS Trust, Warrington
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Wade DT, Kitzinger C. Making healthcare decisions in a person's best interests when they lack capacity: clinical guidance based on a review of evidence. Clin Rehabil 2019; 33:1571-1585. [PMID: 31169031 PMCID: PMC6745603 DOI: 10.1177/0269215519852987] [Citation(s) in RCA: 9] [Impact Index Per Article: 1.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 05/05/2019] [Accepted: 05/06/2019] [Indexed: 11/16/2022]
Abstract
OBJECTIVE To clarify the concept of best interests, setting out how they should be ascertained and used to make healthcare decisions for patients who lack the mental capacity to make decisions. CONTEXT The legal framework is the Mental Capacity Act (MCA) 2005, which applies to England and Wales. THEORY Unless there is a valid and applicable Advance Decision, an appointed decision-maker needs to decide for those without capacity. This may be someone appointed by the patient through a Lasting Power of Attorney, or a Deputy appointed by the court. Otherwise the decision-maker is usually the responsible clinician. Different approaches exist to surrogate decision-making cross-nationally. In England and Wales, decision-making is governed by the MCA 2005, which uses a person-centred, flexible best interests (substituted interests) approach. OBSERVATIONS The MCA is often not followed in healthcare settings, despite widespread mandatory training. The possible reasons include its focus on single decisions, when multiple decisions are made daily, the potential time involved and lack of clarity about who is the responsible decision-maker. SOLUTION One solution is to decide a strategic policy to cover more significant (usually health-related) decisions and to separate these from day-to-day relational decisions covering care and activities. Once persistent lack of capacity is confirmed, an early meeting should be arranged with family and friends, to start a process of sharing information about the patient's medical condition and their values, wishes, feelings and beliefs with a view to making timely treatment decisions in the patient's best interests.
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Affiliation(s)
- Derick T Wade
- Professor of Neurological
Rehabilitation, OxINMAHR, and Movement Science Group, Faculty of Health and Life
Sciences, Oxford Brookes University, Oxford, UK
| | - Celia Kitzinger
- Honorary Professor and Co-Director of
the Coma and Disorders of Consciousness Research Centre, School of Law and Politics,
Cardiff University, Cardiff, UK
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33
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Hall MI. Situating dementia in the experience of old age: Reconstructing legal response. Int J Law Psychiatry 2019; 66:101468. [PMID: 31706378 DOI: 10.1016/j.ijlp.2019.101468] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 05/13/2019] [Accepted: 05/13/2019] [Indexed: 06/10/2023]
Abstract
This paper examines the intersection of dementia with the physiological processes and social contexts of old age; assesses the current legal response to problems arising through that intersection; and considers the potentially transformative effect of re-thinking legal response with those contextualised problems in mind. Two distinctive problems are identified: a heightened risk of exploitation, and an increasingly intense need for care coinciding with a decreasing ability to recognise and respond to that need. These problems require a social (rather than medical) response, of which law is an integral part. Several areas of law (including adult guardianship, legislation and common law doctrine relating to health care consent/refusal, and the body of law relating to decision-making about agreements, transactions, and bequests) provide for that response through the medico-legal construct of mental capacity. This legal idea of mental capacity has survived extensive critique, particularly in relation to interpretation and implementation of Article 12 of the Convention on the Rights of Persons With Disabilities. The survival of the mental capacity construct can be attributed to its usefulness as a theoretical mechanism that provides both a justification for over-ruling choice and preference (locating autonomy in the mentally capable decision) and a process for doing so (the mental capacity assessment and determination). This ambit of usefulness is particularly relevant to the problems (arising in the context of dementia in old age) identified in this paper. Both problems engage the public interest, together with the fundamental legal principle of fairness, in ways that call for legal response of some kind. Supported decision-making, as the suggested replacement for mental capacity based legal response, applies awkwardly in these contexts; as far as the individual is concerned, her decision has been made (and she does not need assistance in making one). This paper concludes that the mental capacity construct is problematic both for the reasons identified in the CRPD discourse (in which the experience of dementia in old age has been largely invisible) and because of the complicated intersections between mental capacity, dementia, and old age. The paper concludes by setting out an alternative conceptual basis and framework for legal response, including over-ruling expressed choice and preference, constructed around a principled theory of vulnerability as an alternative to and replacement for the mental capacity construct.
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Curley A, Murphy R, Fleming S, Kelly BD. Age, psychiatry admission status and linear mental capacity for treatment decisions. Int J Law Psychiatry 2019; 66:101469. [PMID: 31706384 DOI: 10.1016/j.ijlp.2019.101469] [Citation(s) in RCA: 4] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 05/15/2019] [Accepted: 07/02/2019] [Indexed: 06/10/2023]
Abstract
The relationship between age and mental capacity among psychiatry inpatients is not fully understood. We aimed to assess mental capacity for treatment decisions in voluntary and involuntary psychiatry inpatients in Ireland and, in this analysis of our data-set, to elucidate the linear relationship, if any, between linear (as opposed to categorical) mental capacity and age. We used the MacArthur Competence Assessment Tool for Treatment (MacCAT-T) to assess mental capacity for treatment decisions in 215 psychiatry inpatients (176 voluntary and 39 involuntary) in four psychiatry admission units in Ireland. Mean age was 46.2 years and majorities were male (58.1%), never married (74.0%), unemployed (64.2%) and of Irish ethnicity (87.0%). The most common primary diagnoses were schizophrenia and related disorders (42.8%) followed by affective disorders (36.7%). On multi-variable linear regression analysis, linear mental capacity was significantly associated with voluntary admission status, being employed, having a primary diagnosis other than schizophrenia or a related disorder, and younger age. Together, these factors accounted for 44.4% of the variance in mental capacity between participants. Overall, while increased age is associated with diminished mental capacity, other factors appear more significant, including involuntary admission status which is likely an indicator of symptom severity. There is a need for further research to (a) elucidate the relationships between the significant factors identified in this study and the cognitive status of patients (which impacts on assessments of mental capacity); (b) identify and elucidate other factors of likely relevance to mental capacity (e.g. medical illness, medication use); and (c) translate these findings into targeted interventions to support decision-making in clinical practice among psychiatry inpatients, especially those with involuntary status.
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Affiliation(s)
- Aoife Curley
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin D24 NR0A, Ireland.
| | - Ruth Murphy
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin D24 NR0A, Ireland.
| | - Sean Fleming
- Department of Medicine, Midland Regional Hospital, Dublin Road, Portlaoise, County Laois R32 RW61, Ireland.
| | - Brendan D Kelly
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin D24 NR0A, Ireland.
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Shepherd V, Wood F, Griffith R, Sheehan M, Hood K. Protection by exclusion? The (lack of) inclusion of adults who lack capacity to consent to research in clinical trials in the UK. Trials 2019; 20:474. [PMID: 31382999 PMCID: PMC6683336 DOI: 10.1186/s13063-019-3603-1] [Citation(s) in RCA: 41] [Impact Index Per Article: 8.2] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 05/21/2019] [Accepted: 07/19/2019] [Indexed: 11/24/2022] Open
Abstract
BACKGROUND Around two million adults in the UK have significantly impaired decision-making capacity. However, there are concerns that this population is under-represented in research, due in part to the challenges around obtaining consent. Under-representation of populations denies those who would have wanted to participate the opportunity to make a contribution to society, but also fails to generate results that are applicable to them. Consequently, the evidence base for their care is poorer than for other populations. We recently published in this journal an analysis of Participant Information Sheets provided to consultees and legal representatives of adults who lack capacity and noted the small number of trials designed to include adults who lack capacity. In order to understand how many adults who lack capacity to consent are actually enrolled in clinical trials, we further explored how many of the participants lacked capacity, and who acted as a consultee or legal representative on their behalf. MAIN TEXT The ISRCTN registry was searched for UK clinical trials in conditions commonly associated with cognitive impairment that were designed to include (or not exclude) adults who lack capacity to consent. Details about participants and capacity status were obtained from published data or directly from the trial teams. Of the 80 retrieved clinical trials that had completed in the previous 3 years, we identified 15 which included adults who lack capacity to consent. Data regarding participants' capacity status were not available for five trials. Where capacity was reported, 5-100% participants lacked capacity to consent. Trials predominantly utilised personal consultees/legal representatives; however, 39% (634/1631) of participants required a professional to act as consultee/legal representative. CONCLUSIONS Only a small number of trials including adults who lacked capacity were identified. The majority of participants were represented by a personal consultee/legal representative; however, between 21 and 100% of participants across five trials required the involvement of a professional, suggesting it is not uncommon. Data relating to capacity status were rarely reported, potentially masking the under-representation of adults who lack capacity. The findings may help researchers and funders target resources towards studies involving under-represented populations to increase the much-needed evidence base for their care and treatment.
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Affiliation(s)
- Victoria Shepherd
- Division of Population Medicine, Cardiff University, Heath Park, Cardiff, CF14 4YS UK
- Centre for Trials Research, Cardiff University, Neuadd Meirionnydd, Heath Park, Cardiff, CF14 4YS UK
| | - Fiona Wood
- Division of Population Medicine, Cardiff University, Heath Park, Cardiff, CF14 4YS UK
| | - Richard Griffith
- College of Human and Health Studies, Swansea University, Singleton Park, Swansea, SA2 8PP UK
| | - Mark Sheehan
- Ethox Centre, University of Oxford, Big Data Institute, Old Road Campus, Oxford, OX3 7LF UK
| | - Kerenza Hood
- Centre for Trials Research, Cardiff University, Neuadd Meirionnydd, Heath Park, Cardiff, CF14 4YS UK
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Curley A, Murphy R, Plunkett R, Kelly BD. Concordance of mental capacity assessments based on legal and clinical criteria: A cross-sectional study of psychiatry inpatients. Psychiatry Res 2019; 276:160-166. [PMID: 31096146 DOI: 10.1016/j.psychres.2019.05.015] [Citation(s) in RCA: 9] [Impact Index Per Article: 1.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 03/11/2019] [Revised: 05/07/2019] [Accepted: 05/08/2019] [Indexed: 11/18/2022]
Abstract
This study aimed to compare assessments of mental capacity based on legal criteria with assessments based on clinical criteria among psychiatry inpatients to establish the concordance, if any, between these two approaches to assessing mental capacity. We assessed mental capacity for treatment decisions in 215 psychiatry inpatients (176 voluntary and 39 involuntary) in four psychiatry admission units in Ireland using both legal criteria (Ireland's Assisted Decision-Making (Capacity) Act 2015) and clinical criteria (the MacArthur Competence Assessment Tool for Treatment; MacCAT-T). Over one third of participants (34.9%) lacked mental capacity for treatment decisions according to the legal criteria. Mental incapacity was associated with involuntary admission status, being unemployed, a primary diagnosis of schizophrenia or a related disorder, and older age. Patients who lacked mental capacity according to the legislation scored significantly lower on all subscales of the MacCAT-T than patients who had mental capacity. We conclude that mental capacity assessments based on legal criteria correlate closely with those based on clinical criteria. These findings support current legal definitions of mental incapacity in Ireland and other jurisdictions with similar legislation (e.g. England and Wales).
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Affiliation(s)
- Aoife Curley
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24, D24 NR0A, Ireland.
| | - Ruth Murphy
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24, D24 NR0A, Ireland.
| | - Róisín Plunkett
- Department of Liaison Psychiatry, Beaumont Hospital, Beaumont Road, Dublin 9, D09 A0KH, Ireland.
| | - Brendan D Kelly
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24, D24 NR0A, Ireland.
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Curley A, Murphy R, Plunkett R, Kelly BD. Categorical mental capacity for treatment decisions among psychiatry inpatients in Ireland. Int J Law Psychiatry 2019; 64:53-59. [PMID: 31122640 DOI: 10.1016/j.ijlp.2019.02.001] [Citation(s) in RCA: 5] [Impact Index Per Article: 1.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 12/21/2018] [Revised: 01/31/2019] [Accepted: 02/01/2019] [Indexed: 06/09/2023]
Abstract
This study aimed to assess mental capacity for treatment decisions among psychiatry inpatients in Ireland and explore the relationship, if any, between mental capacity and various demographics and clinical variables. We assessed mental capacity for treatment decisions in 215 psychiatry inpatients in four psychiatry admission units. Almost half of the participants were female and the most common diagnoses were schizophrenia or a related disorder and affective disorders. Overall, 1.9% of participants lacked mental capacity for treatment decisions; 50.7% had partial mental capacity; and 47.4% had full mental capacity. These proportions did not differ between female and male patients. On multi-variable regression analysis, greater mental capacity was significantly associated with, in order of strength of association, voluntary admission status, Irish ethnicity, being employed and younger age. However, while these relationships were statistically significant (i.e. were unlikely to have occurred by chance), together they accounted for just 27.6% of the variance in mental capacity between participants (i.e. they were not very strong). The relatively high rate of "partial mental capacity" identified in our work suggests that decision-making supports are likely to be of substantial importance in assisting psychiatry inpatients making decisions about treatment, especially involuntary inpatients whose mental capacity is especially likely to be impaired. Future research could usefully clarify and quantify the role of cognitive and other factors in relation to the unexplained variance (72.4%) in mental capacity identified in this study; and explore which models of supported decision-making are most likely to assist the substantial proportion (50.7%) of psychiatry inpatients who have partial mental capacity for treatment decisions, as well as the minority lacking such mental capacity (1.9%).
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Affiliation(s)
- Aoife Curley
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24 D24 NR0A, Ireland.
| | - Ruth Murphy
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24 D24 NR0A, Ireland
| | - Róisín Plunkett
- Department of Liaison Psychiatry, Beaumont Hospital, Beaumont Road, Dublin 9 D09 A0KH, Ireland.
| | - Brendan D Kelly
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin 24 D24 NR0A, Ireland.
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Owen GS, Gergel T, Stephenson LA, Hussain O, Rifkin L, Keene AR. Advance decision-making in mental health - Suggestions for legal reform in England and Wales. Int J Law Psychiatry 2019; 64:162-177. [PMID: 31122626 PMCID: PMC6544565 DOI: 10.1016/j.ijlp.2019.02.002] [Citation(s) in RCA: 8] [Impact Index Per Article: 1.6] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 06/01/2023]
Abstract
This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983.
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Affiliation(s)
- G S Owen
- Reader and lead, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF.
| | - T Gergel
- Wellcome Senior Research Fellow, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF
| | - L A Stephenson
- Clinical Research Associate, Mental Health, Ethics and Law Research Group, ST6 General Adult Psychiatry and Medical Psychotherapy., Institute of Psychiatry, Psychology and Neuroscience, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF
| | - O Hussain
- ST4 in Forensic Psychiatry, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ
| | - L Rifkin
- Consultant Psychiatrist, Lambeth Home Treatment Team, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF
| | - A Ruck Keene
- Barrister, Wellcome Research Fellow, Visiting Lecturer at the Dickson Poon School of Law, Kings College London, Somerset House, East Wing WC2R 2LS, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF
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Craigie J, Davies A. Problems of Control: Alcohol Dependence, Anorexia Nervosa, and the Flexible Interpretation of Mental Incapacity Tests. Med Law Rev 2019; 27:215-241. [PMID: 30053254 PMCID: PMC6536256 DOI: 10.1093/medlaw/fwy022] [Citation(s) in RCA: 4] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 06/08/2023]
Abstract
This article investigates the ability of mental incapacity tests to account for problems of control, through a study of the approach to alcohol dependence and a comparison with the approach to anorexia nervosa, in England and Wales. The focus is on two areas of law where questions of legal and mental capacity arise for people who are alcohol dependent: decisions about treatment for alcohol dependence and diminished responsibility for a killing. The mental incapacity tests used in these legal contexts are importantly different-one involves a 'cognitive' test, while the other includes an explicit impaired-control limb-and the comparison provides insight into a longstanding debate about the virtues of one type of test over the other. It is shown that both kinds of test can take control problems into account, but also that both can be interpreted in narrow and wide ways that significantly influence the outcome of the assessment. It is therefore argued that to a large extent, it is not the kind of mental incapacity test that matters, but how the test is interpreted. It is further proposed that value judgements are playing an unrecognised and inappropriate role in shaping this interpretation. This raises concerns about the current approach to assessing the impact of alcohol dependency on the capacity to make decisions about alcohol use or treatment, as well as broader concerns about flexibility within incapacity tests.
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Affiliation(s)
- Jillian Craigie
- Centre of Medical Law and Ethics, Dickson Poon School of Law, King’s College London, Strand, London, UK
| | - Ailsa Davies
- Fitness to Practise, Nursing and Midwifery Council, London, UK
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40
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Duffy RM, Kelly BD. India's Mental Healthcare Act, 2017: Content, context, controversy. Int J Law Psychiatry 2019; 62:169-178. [PMID: 30122262 DOI: 10.1016/j.ijlp.2018.08.002] [Citation(s) in RCA: 37] [Impact Index Per Article: 7.4] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 05/14/2018] [Revised: 07/30/2018] [Accepted: 08/06/2018] [Indexed: 05/13/2023]
Abstract
India's new mental health legislation, the Mental Healthcare Act, 2017, was commenced on 29 May 2018 and seeks explicitly to comply with the United Nations Convention on the Rights of Persons with Disabilities. It grants a legally binding right to mental healthcare to over 1.3 billion people, one sixth of the planet's population. Key measures include (a) new definitions of 'mental illness' and 'mental health establishment'; (b) revised consideration of 'capacity' in relation to mental healthcare (c) 'advance directives' to permit persons with mental illness to direct future care; (d) 'nominated representatives', who need not be family members; (e) the right to mental healthcare and broad social rights for the mentally ill; (f) establishment of governmental authorities to oversee services; (g) Mental Health Review Boards to review admissions and other matters; (h) revised procedures for 'independent admission' (voluntary admission), 'supported admission' (admission and treatment without patient consent), and 'admission of minor'; (i) revised rules governing treatment, restraint and research; and (j) de facto decriminalization of suicide. Key challenges relate to resourcing both mental health services and the new structures proposed in the legislation, the appropriateness of apparently increasingly legalized approaches to care (especially the implications of potentially lengthy judicial proceedings), and possible paradoxical effects resulting in barriers to care (e.g. revised licensing requirements for general hospital psychiatry units). There is ongoing controversy about specific measures (e.g. the ban on electro-convulsive therapy without muscle relaxants and anaesthesia), reflecting a need for continued engagement with stakeholders including patients, families, the Indian Psychiatric Society and non-governmental organisations. Despite these challenges, the new legislation offers substantial potential benefits not only to India but, by example, to other countries that seek to align their laws with the United Nations' Convention on the Rights of Persons with Disabilities and improve the position of the mentally ill.
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Affiliation(s)
- Richard M Duffy
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin D24 NR0A, Ireland.
| | - Brendan D Kelly
- Department of Psychiatry, Trinity College Dublin, Trinity Centre for Health Sciences, Tallaght University Hospital, Dublin D24 NR0A, Ireland.
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41
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Craigie J, Bach M, Gurbai S, Kanter A, Kim SYH, Lewis O, Morgan G. Legal capacity, mental capacity and supported decision-making: Report from a panel event. Int J Law Psychiatry 2019; 62:160-168. [PMID: 30389184 PMCID: PMC6372113 DOI: 10.1016/j.ijlp.2018.09.006] [Citation(s) in RCA: 5] [Impact Index Per Article: 1.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Received: 06/28/2018] [Revised: 08/20/2018] [Accepted: 09/19/2018] [Indexed: 05/30/2023]
Abstract
Against a backdrop of the UN Convention on the Rights of Persons with Disabilities having been in place for over a decade, discussions about legal capacity, the relevance of mental capacity and the shift to supported decision-making, continue to develop. A panel event was held at the King's Transnational Law Summit in 2018 with the aim of understanding the contours of the dialogue around these issues. This paper presents the contributions of the panel members, a summary of the discussion that took place and a synthesis of the views expressed. It suggests that divergent conclusions in this area turn on disagreements about: the consequences of sometimes limiting legal capacity for people with mental disabilities; the emphasis placed on particular values; the basis for mental capacity assessments; and the scope for supported decision-making. It also highlights the connection between resources, recognition and freedoms for people with mental disabilities, and therefore the issues that arise when discussion in this area is limited to legal capacity in the context of decision-making.
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Affiliation(s)
- Jillian Craigie
- Centre of Medical Law and Ethics, Dickson Poon School of Law, King's College London, London WC2R 2LS, UK.
| | - Michael Bach
- IRIS - Institute for Research and Development on Inclusion and Society, and Disability Studies, Ryerson University, Toronto, Canada
| | - Sándor Gurbai
- Essex Autonomy Project, University of Essex, Colchester, UK; Institute for Disability and Social Participation, ELTE University, Budapest, Hungary
| | - Arlene Kanter
- Disability Law and Policy Program, Syracuse University College of Law, Syracuse, NY, USA
| | - Scott Y H Kim
- Department of Bioethics, Clinical Center, National Institutes of Health, 10 Center Drive, 1C118, Bethesda, MD 20892-1156, USA
| | - Oliver Lewis
- Doughty Street Chambers, 53 Doughty Street, London WC1N 2LS, School of Law, University of Leeds, Leeds LS2 9JT, UK
| | - Graham Morgan
- Mental Welfare Commission for Scotland, Thistle House, 91 Haymarket Terrace, Edinburgh EH12 5HE, UK
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42
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Ruck Keene A, Kane NB, Kim SYH, Owen GS. Taking capacity seriously? Ten years of mental capacity disputes before England's Court of Protection. Int J Law Psychiatry 2019; 62:56-76. [PMID: 30616855 PMCID: PMC6338675 DOI: 10.1016/j.ijlp.2018.11.005] [Citation(s) in RCA: 10] [Impact Index Per Article: 2.0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Received: 08/17/2018] [Revised: 11/10/2018] [Accepted: 11/15/2018] [Indexed: 05/12/2023]
Abstract
Most of the late 20th century wave of reforms in mental capacity or competence law were predicated upon the so-called 'functional' model of mental capacity, asking not merely whether a person had a mental disorder or disability but rather whether they were capable of making a specific decision (or decisions) at a specific point of time. This model is now under sustained challenge, most notably from the Committee on the Rights of Persons with Disabilities, and this challenge has focused a spotlight on the difficulty of applying the legally 'neat' concepts of the functional model of mental capacity across the full complex spectrum of human life. This paper presents a review, in two parts, of the first ten years of the Court of Protection, a specialist mental capacity court in England and Wales which applies a functional model of mental capacity. The first part outlines the history of the functional model in England and Wales, and the development of this specialist mental capacity court (Court of Protection), created by the Mental Capacity Act 2005. The second part presents an empirical and case-based study of 40 published cases of capacity disputes presented to the Court of Protection, or to the Court of Appeal on appeal from the Court of Protection, during the first ten years of its existence. The authors found that in 70% of cases the subject of proceedings (or P) had either a learning disability or dementia, and the court ruled on P's capacity for a wide range of issues, most commonly residence, care and contact. The judge considered the support principle, or whether practical steps were taken to maximise P's capacity, in 23 of 40 (57.5%) cases. The subject P was determined to have capacity in 13 cases, to lack capacity in 22 cases, and in 5 cases P was found to have and lack capacity for different issues before the court. The functional inability to use or weigh relevant information was most commonly cited by the judge, being cited in all but 2 cases in which P was determined to lack capacity and inabilities were cited. The propensity for the system to learn was shown by an increase in the proportion of cases which considered the 'causative nexus' from 2013, when a Court of Appeal case emphasised that impairment must not merely be present alongside functional inability but must be the causal basis of inability. The authors conclude that whilst the Court of Protection is still on a learning curve, its work provides a powerful illustration of what taking capacity seriously looks like, both inside and outside the courtroom. The implications for judges, lawyers and psychiatrists that can be drawn from the study are generalisable to other comparable socio-legal frameworks in which mental capacity or competence plays a role and is likely to do so for the foreseeable future.
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Affiliation(s)
| | - Nuala B Kane
- Department of Psychological Medicine, King's College London, Institute of Psychiatry, Psychology and Neuroscience, UK
| | - Scott Y H Kim
- Department of Bioethics, National Institutes of Health, USA
| | - Gareth S Owen
- Department of Psychological Medicine, King's College London, Institute of Psychiatry, Psychology and Neuroscience, UK
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Owen GS, Martin W, Gergel T. Misevaluating the Future: Affective Disorder and Decision-Making Capacity for Treatment - A Temporal Understanding. Psychopathology 2018; 51:371-379. [PMID: 30485862 PMCID: PMC6481253 DOI: 10.1159/000495006] [Citation(s) in RCA: 5] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 05/02/2018] [Accepted: 10/31/2018] [Indexed: 11/19/2022]
Abstract
BACKGROUND Within psychiatric practice and policy there is considerable controversy surrounding the nature and assessment of impairments of decision-making capacity (DMC) for treatment in persons diagnosed with affective disorders. We identify the problems of "cognitive bias" and "outcome bias" in assessment of DMC for treatment in affective disorder and aim to help resolve these problems with an analysis of how time is experienced in depression and mania. SAMPLING AND METHODS We conducted purposeful sampling and a qualitative phenomenological analysis of interview data on patients with depression and mania, exploring temporal experience and decision-making regarding treatment. RESULTS In both severe depression and mania there is a distinctive experience of the future. Two consequences can follow: a loss of evaluative differentiation concerning future outcomes and, relatedly, inductive failure. This temporal inability can compromise an individual's ability to appreciate or "use or weigh" treatment information. CONCLUSIONS The decision-making abilities required for self-determination involve an ability to evaluate alternative future outcomes. Our results show that, within severe depression or mania, anticipation of future outcomes is inflexibly fixed at one end of the value spectrum. We therefore propose a temporal model of decision-making abilities, which could be used to improve assessment of DMC in affective disorder.
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Affiliation(s)
- Gareth S Owen
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, United Kingdom,
| | - Wayne Martin
- Essex Autonomy Project, School of Philosophy and Art History, University of Essex, Colchester, United Kingdom
| | - Tania Gergel
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, United Kingdom
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Elzakkers IFFM, Danner UN, Grisso T, Hoek HW, van Elburg AA. Assessment of mental capacity to consent to treatment in anorexia nervosa: A comparison of clinical judgment and MacCAT-T and consequences for clinical practice. Int J Law Psychiatry 2018; 58:27-35. [PMID: 29853010 DOI: 10.1016/j.ijlp.2018.02.001] [Citation(s) in RCA: 11] [Impact Index Per Article: 1.8] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 02/08/2017] [Revised: 01/22/2018] [Accepted: 02/13/2018] [Indexed: 06/08/2023]
Abstract
Informed consent requires adequate mental capacity to consent to treatment. Mental capacity (MC) to consent to treatment refers to the ability to make medical decisions. MC is assessed in a general psychiatric interview, but this clinical assessment is known to overestimate mental capacity in patients and the inter rater reliability is low. The MacArthur Competence Assessment Tool for Treatment (MacCAT-T) has emerged as the gold standard to assess mental capacity to consent to treatment. The MacCAT-T is a semi-structured interview designed to aid clinicians in this assessment and has shown good inter rater reliability in patients with schizophrenia and other mental disorders, but has hardly been studied in patients with anorexia nervosa. Patients with anorexia nervosa (AN) regularly avoid treatment, even when severely ill and discussion includes assessing MC to consent to treatment. The aim of this study is to compare clinical judgment and the MacCAT-T in evaluating MC in patients with AN which in turn may influence use of the MacCAT-T in daily practice. In a sample of 70 consecutively referred severely ill patients with AN with a mean BMI of 15.5 kg/m2 and a mean duration of illness of 8.6 years, clinical assessment of MC by experienced psychiatrists and the outcome of the MacCAT-T interview were compared. Agreement (κ-value) was calculated. Agreement between clinical assessment and outcome of the MacCAT-T was questionable (κ 0.23). Unlike in other psychiatric populations, clinicians judged a high proportion of patients with AN as having diminished MC. The MacCAT-T can be useful in assessing MC in AN when used in addition to clinical judgment to aid clinicians in complex cases. Why clinicians judge a relatively high proportion of patients with AN as having diminished MC, in contrast to lower proportions in other psychiatric disorders, is an area in need of further research.
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Affiliation(s)
- Isis F F M Elzakkers
- Altrecht Eating Disorders Rintveld, Altrecht Mental Health Institute, The Netherlands
| | - Unna N Danner
- Altrecht Eating Disorders Rintveld, Altrecht Mental Health Institute, The Netherlands; Utrecht University, Department of Psychology, The Netherlands
| | - Thomas Grisso
- Department of Psychiatry, University of Massachusetts Medical School, Worcester, MA, USA
| | - Hans W Hoek
- Altrecht Eating Disorders Rintveld, Altrecht Mental Health Institute, The Netherlands; Parnassia Psychiatric Institute, The Hague, The Netherlands; Department of Psychiatry, University Medical Center Groningen, The Netherlands; Department of Epidemiology, Mailman School of Public Health, Columbia University New York, USA
| | - Annemarie A van Elburg
- Altrecht Eating Disorders Rintveld, Altrecht Mental Health Institute, The Netherlands; Utrecht University, Department of Psychology, The Netherlands.
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Abstract
The Mental Capacity Act 2005 ('MCA') sets out a regime which governs the making of decisions for people who lack mental capacity. Acts must be carried out, and decisions made, for such an incapacitated person, based on what is in her best interests (section 4 MCA). In this paper, I consider the body of post-MCA case law which applies the MCA best interests test to decision-making for elderly people, in various contexts. Is the best interests test 'fit for purpose' for the vulnerable elderly? The key aims of Parliament in introducing the test seem to have been empowerment, protection and support - and alertness to undue influence - as well as a balance between the objective and subjective viewpoints. Laudable attempts have been made by some judges, applying the MCA, to pay real heed to the patient's wishes and values, and to balance physical risk with welfare and happiness. However, it is not yet clear in my view that the new regime fully achieves Parliament's aims. Indeed, these aims themselves should be expanded; the law in this area should also promote the significance and value of advanced years and should recognise Aristotle's concept of 'human flourishing' in old age. Consideration should be given to amending the MCA, adding guidance specifically for the elderly and also to introducing a Convention of Human Rights for the older person and to creating a new statutory Older Persons' Commissioner and/or a cabinet-level Minister for Ageing and Older People.
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46
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Johnston CS. Lack of Capacity is not an 'off Switch' for Rights and Freedoms: Wye Valley Nhs Trust V Mr B (By His Litigation Friend, the Official Solicitor) [2015] Ewcop 60. Med Law Rev 2017; 25:662-671. [PMID: 28369446 DOI: 10.1093/medlaw/fwx009] [Citation(s) in RCA: 2] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 06/07/2023]
Abstract
Wye Valley NHS Trust v Mr B [2015] EWCOP 60 illustrates the extent to which the wishes, feelings, beliefs, and values strongly expressed by a person who lacks decision-making capacity are to be considered in determining his best interests. Whilst not going as far as a supported decision-making model, as endorsed by the UN Convention on the Rights of Persons with Disabilities, the case exemplifies the participative ethos of the Mental Capacity Act 2005 and the requirement that the person lacking capacity should participate as fully as possible in any decision affecting him.
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Affiliation(s)
- Carolyn S Johnston
- GKT School of Medical Education, Faculty of Life Sciences and Medicine, King's College London, London, UK and Law School, Kingston University, London UK
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47
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Skowron P. Humility when responding to the abuse of adults with mental disabilities. Int J Law Psychiatry 2017; 53:102-110. [PMID: 28532859 DOI: 10.1016/j.ijlp.2017.04.005] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Subscribe] [Scholar Register] [Received: 11/25/2016] [Revised: 03/21/2017] [Accepted: 04/23/2017] [Indexed: 06/07/2023]
Abstract
Legal theorists often reduce the ethics of responding to the abuse of another person to a clash between the principles of autonomy and protection. This reduction is a problem. Responding to suspected abuse requires humility - the potential responder must be aware of and respect their own limits - but humility cannot be usefully reduced to protection and autonomy. Using examples from the Court of Protection of England and Wales, this article examines the different ways that someone responding to abuse should respect their own limits, and suggests that a failure to do so will disproportionately affect people with mental disabilities. It is therefore necessary to attend to whether the law fosters humility among those who respond to abuse, although this must be tempered by humility about legal reform itself. Finally, the article shows how attention to humility can assist the interpretation of Article 16 of the UN Convention on the Rights of Persons with Disabilities; and suggests that, so interpreted, the Convention may help to promote humility when responding to abuse.
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Affiliation(s)
- Paul Skowron
- Centre for Social Ethics and Policy, University of Manchester, Manchester, UK.
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48
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Pariwatcharakul P, Singhakant S. Mental Capacity Assessments Among Inpatients Referred to the Consultation-Liaison Psychiatry Unit at a University Hospital in Bangkok, Thailand. Psychiatr Q 2017; 88:65-73. [PMID: 27155827 DOI: 10.1007/s11126-016-9439-x] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Indexed: 10/21/2022]
Abstract
Clinicians routinely assess patients' mental capacity on a daily basis, but a more thorough assessment may be needed in complex cases. We aimed to identify the characteristics of inpatients in a general hospital, who were referred to a liaison psychiatry service for mental capacity assessment, reasons for the referrals, and the factors associated with their mental capacity. A 6-year retrospective study (2008-2013) was conducted using data collected routinely (e.g., age, gender, diagnosis, Thai Mental State Examination score, reasons for the referral, and the outcome of capacity assessment) on referrals for mental capacity assessment to a Consultation-liaison Psychiatry Unit at a university hospital in Thailand. Among 6194 consecutive referrals to the liaison-psychiatry services, only 0.6 % [n = 37, mean age (SD), 59.83 (20.42)] were referred for capacity assessment, 43.24 % of which lacked mental capacity. The most common requests from referring physicians were for assessment of testamentary capacity (15 assessed, 53.33 % lacking capacity), financial management capacity (14 assessed, 50 % lacking capacity), and capacity to consent to treatment (9 assessed, 22.22 % lacking capacity). Delirium, rather than dementia or other mental disorders, was associated with mental incapacity (p < 0.001) and being more dependent during the admission (p = 0.048). There were no significant differences for mean age (p = 0.257) or Thai Mental State Examination score (p = 0.206). The main request from referring clinicians was to assess testamentary capacity. Delirium and being more dependent during the admission were associated with lack of mental capacity, whereas age and dementia were not.
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Affiliation(s)
- Pornjira Pariwatcharakul
- Department of Psychiatry, Faculty of Medicine Siriraj Hospital, Mahidol University, 2 Wanglang Road, Bangkoknoi, Bangkok, 10700, Thailand
| | - Supachoke Singhakant
- Department of Psychiatry, Faculty of Medicine Siriraj Hospital, Mahidol University, 2 Wanglang Road, Bangkoknoi, Bangkok, 10700, Thailand.
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Chatfield DA, Lee S, Cowley J, Kitzinger C, Kitzinger J, Menon DK. Is there a broader role for independent mental capacity advocates in critical care? An exploratory study. Nurs Crit Care 2017; 23:82-87. [PMID: 28247553 DOI: 10.1111/nicc.12290] [Citation(s) in RCA: 4] [Impact Index Per Article: 0.6] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Received: 05/16/2016] [Revised: 01/10/2017] [Accepted: 01/24/2017] [Indexed: 11/28/2022]
Abstract
BACKGROUND This research explores the current and potential future role of independent mental capacity advocates (IMCAs) in critical care. The Mental Capacity Act (MCA) of 2005 introduced IMCAs as advocates for patients without anyone to represent their best interests, but research suggests that this role is not well understood or implemented. No existing research explores the role of IMCAs in critical care or their potential use when families are judged 'appropriate to act' on the patient's behalf. It is suggested that families may not be best placed to advocate for their sick family member when they themselves are in a state of shock. AIM To investigate existing levels of knowledge and awareness of the MCA and understanding of the role of IMCAs in critical care as a prelude to considering whether the role of IMCAs might usefully be extended. The concept of 'IMCA clinics' is introduced and explored. DESIGN AND METHODS A small-scale qualitative study using thematic analysis of 15 interviews across two NHS sites and a survey of IMCA services were undertaken. RESULTS Some knowledge of the MCA was evident across both study sites, but training on MCA remains unsatisfactory, with confusion about the role of IMCAs and when they should become involved. Overall, participants felt that the broader involvement of IMCAs on a regular basis within critical care could be useful. CONCLUSIONS There was evidence of good practice when instructing IMCAs, but further work needs to be conducted to ensure that critical care staff are informed about the referral process. It was clear that expanding the role of an advocate warrants further investigation. RELEVANCE TO CLINICAL PRACTICE Further training on the role of IMCAs within critical care is required, and good practice examples should be shared with other units to improve referral rates to the IMCA service and ensure that vulnerable patients are properly represented.
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Affiliation(s)
| | - Sue Lee
- Empowerment Matters, Liscard, UK
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50
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Costa ML, Tutton E, Achten J, Grant R, Slowther AM. Informed consent in the context of research involving acute injuries and emergencies. Bone Joint J 2017; 99-B:147-150. [PMID: 28148654 DOI: 10.1302/0301-620x.99b2.bjj-2016-0517.r1] [Citation(s) in RCA: 10] [Impact Index Per Article: 1.4] [Reference Citation Analysis] [What about the content of this article? (0)] [Affiliation(s)] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 05/31/2016] [Accepted: 10/11/2016] [Indexed: 11/05/2022]
Abstract
Traditionally, informed consent for clinical research involves the patient reading an approved Participant Information Sheet, considering the information presented and having as much time as they need to discuss the study information with their friends and relatives, their clinical care and the research teams. This system works well in the 'planned' or 'elective' setting. But what happens if the patient requires urgent treatment for an injury or emergency? This article reviews the legal framework which governs informed consent in the emergency setting, discusses how the approach taken may vary according to the details of the emergency and the treatment required, and reports on the patients' view of providing consent following a serious injury. We then provide some practical tips for managing the process of informed consent in the context of injuries and emergencies. Cite this article: Bone Joint J 2017;99-B:147-150.
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Affiliation(s)
- M L Costa
- University of Oxford, NDORMS, Kadoorie Centre, Level 3 John Radcliffe Hospital, Oxford, OX3 9DU, UK
| | - E Tutton
- Oxford University Hospitals NHS Foundation Trust, Kadoorie Centre, John Radcliffe, OX3 9DU, UK
| | - J Achten
- University of Oxford, NDORMS, Kadoorie Centre, Level 3 John Radcliffe Hospital, Oxford, OX3 9DU, UK
| | - R Grant
- Warwick Medical School/CLAHRC WM/Coventry & Warwickshire Partnership Trust, University of Warwick, Warwick Medical School, Coventry CV4 8UW, UK
| | - A M Slowther
- Warwick Medical School, University of Warwick, Gibbet Hill Campus, Coventry CV4 7AL, UK
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