Insight and the Capacity to Refuse Treatment with Electroconvulsive Therapy.

All Australian jurisdictions have statutory provisions governing the use of electroconvulsive therapy. Cases in which the patient lacks insight into their psychotic illness and need for treatment and refuses to have ECT are particularly poignant. In Re ICO [2023] QMHC 1, the Queensland Mental Health Court considered whether a patient with a treatment-resistant psychotic illness had decision-making capacity to refuse ECT. The Court also considered whether the patient had been provided with an adequate explanation of the proposed treatment including the expected benefits, risks and adverse effects of ECT. As well as deciding whether ECT was appropriate in the circumstances, the Court considered whether there were alternative treatments including another trial of the oral antipsychotic clozapine. This article reviews issues relating to lack of insight in persons with psychotic illness and relevant considerations for determining capacity to decline ECT.

Important legal principles of consent and mental capacity.

Consent is an essential part of healthcare practice, allowing patients to make autonomous decisions. However, this changes when a patient has mental incapacity or is unable to make decisions for themselves for a duration of time. This month's Policy column looks at some of the key principles of the Mental Capacity Act 2005, and how this can be applied in community nursing practice.

Examining the approaches used to assess decision-making capacity in healthcare practice.

AIM: To examine the approaches that are being used in New Zealand when conducting decision-making capacity (DMC) assessments among the healthcare professionals that commonly conduct DMC assessments and those that are involved in, but do not conduct, the assessments. METHOD: An online quantitative survey was conducted, lasting 10 minutes, including a mix of closed- and open-ended questions. The survey garnered responses from a total of n=78 participants. RESULTS: Bedside cognitive tests were found to be the most commonly reported tool used to assess DMC among those conducting and those contributing to DMC assessments. Nearly a third (31.9%) of participants conducting DMC assessments used a structured clinical interview as one of their most common approaches while 27.5% of this same group reported not being aware of this approach. It was reported by both those conducting and those contributing to DMC assessments that the current standards lack quality and consistency, with partial capacity being poorly understood and identified, and supported decision making often being overlooked for substitute decision making. CONCLUSIONS: Current approaches to DMC assessment lack standardisation and consistency, with assessment approaches being widely varied. This article serves as a call for the development of and adherence to nationally recognised standards for DMC assessments.

Mute by Visitation of God, Competency to Stand Trial and Fitness to Plead.

Laws on competency to stand trial and fitness to plead are said to derive from "mute by visitation of God," a medieval English legal term referring to the inability to speak through no fault of one's own. The paper describes the relevant historical background, illustrative cases, and legal commentaries. Muteness by visitation of God arose to address a particular set of difficulties caused by the need to have medieval defendants agree to be tried. Competency to stand trial and fitness to plead, on the other hand, arose to address more general and enduring concerns, that putting people on trial when they were unable to understand or participate compromised the dignity and fairness of criminal proceedings. The origins of competency to stand trial and fitness to plead do not lie in medieval English attempts to persuade silent defendants to speak. They warrant their own historical exegesis.

Mental health competencies are stronger determinants of well-being than mental disorder symptoms in both psychiatric and non-clinical samples.

The present study aimed to investigate whether the strength of mental health competencies and the severity of mental disorder symptoms, and their interaction, differ in the strength of their associations with several dimensions of well-being in Hungarian adult psychiatric and non-clinical samples. All respondent in the psychiatric sample (129 patients (44 male, 85 female)) and in the non-clinical community sample (253 adults (43 male, 210 female)) completed the Mental Health Test, six measures of well-being and mental health, and the Symptom Checklist-90-Revised. Including both mental health competencies and mental disorder symptoms in a regression model in both samples can predict patients' well-being even more accurately. Mental health competencies were positively related; mental disorder symptoms were negatively related to subjective well-being. In all models and in both samples, mental health competencies were found to be stronger determinants of well-being than mental disorder symptoms. The interaction of mental health competencies and mental disorder symptoms is no more predictive of well-being in either psychiatric or non-clinical samples than when the effects of each are considered separately. The assessment of mental health competencies has an important predictive value for well-being in the presence of psychopathological symptoms and/or mental disorders.

A Primer for Increasing Competency in Forensic Psychiatry Research.

Empirical research is foundational to the discipline of forensic psychiatry. Candilis and Parker provide a cogent systematic review of the empirical literature on restoration of competence to stand trial using National Institutes of Health quality metrics. Components of the study methodology are highlighted, as they represent current best practices for conducting a systematic review. A discussion of strategies to increase empirical research uptake in forensic psychiatry is pursued alongside concrete examples of how the American Academy of Psychiatry and the Law Research Committee can help facilitate this goal.

An Assessment of the Quality of Competence Restoration Research.

A systematic review of the literature on restoration of competence to stand trial identified a predominance of retrospective case studies using descriptive and correlational statistics. Guided by National Institutes of Health (NIH) quality metrics and emphasizing study design, sample size, and statistical methods, the authors categorized a large majority of studies as fair in quality, underscoring the need for controlled designs, larger representative samples, and more sophisticated statistical analyses. Implications for the state of forensic research include the need to use large databases within jurisdictions and the importance of reliable methods that can be applied across jurisdictions and aggregated for meta-analysis. More sophisticated research methods can be advanced in forensic fellowship training where coordinated projects and curricula can encourage systematic approaches to forensic research.

Diverging medical and legal perceptions of the need for legal guardianship in people with dementia: A qualitative study.

BACKGROUND: Dementia is assumed to alter mental capacity, which may necessitate legal guardianship. However, only limited research exists on how dementia affects mental capacity, and most studies have focused solely on a medical perspective and concentrate on memory functions. The aim of this qualitative study was to investigate physicians' and legal experts' perceptions on a broad range of cognitive and neuropsychiatric domains potentially affecting mental capacity and the need for guardianship in people with dementia. METHODS: Physicians (N = 30) and legal experts (N = 20) participated in semi-structured individual interviews. The data were analyzed by using content analysis and further semi-quantified according to the cognitive and neuropsychiatric domains. RESULTS: Physicians considered neuropsychiatric symptoms and executive dysfunction to be the most important deficits in the legal context, while legal experts highlighted episodic memory impairment and dyscalculia. Perceptions regarding the importance of several cognitive and neuropsychiatric symptoms varied between and within the professional groups. CONCLUSIONS: Physicians and legal experts diverged in their perceptions of cognitive and neuropsychiatric domains affecting mental capacity and the need for guardianship. The evaluation and influence of medical evidence among legal experts heavily rely on subjective opinions. Given the substantial potential impact on patients' equal access to their rights, developing standardized guidelines is essential.

Characteristics associated with criminal responsibility assessment outcomes among women in Central Canada.

The number of women involved with forensic mental health systems internationally is rising, however, limited research has explored the characteristics of those assessed for criminal responsibility. We investigated the demographic, psychiatric, and criminological characteristics of women recommended as eligible or ineligible for the defence of Not Criminally Responsible (NCR) on account of mental disorder following a criminal responsibility assessment in Central Canada. Data were collected through retrospective chart reviews of court-ordered criminal responsibility assessments for 109 women referred for evaluations between 2003 and 2019. Accused were an average age of 34.55 years, predominately identified as Indigenous (37.7%) or Caucasian (20.8%), and had often been charged with assault (47.7%). Women identified in the reports as NCR-eligible were significantly more likely to be employed, experience delusions during the index offence, and have expert reports linking their mental health symptoms to NCR legal criteria. They were also significantly less likely to have a personality disorder, substance-related diagnosis, or have used substances during the index offence. Delusions during the index offence significantly predicted assessment recommendations when controlling for age at assessment order, current substance-related diagnosis, and whether the expert report linked mental health symptoms to NCR legal criteria. Findings indicate the key factors considered by forensic mental health professionals when conducting criminal responsibility assessments with women. Meaningful differences exist between women identified as NCR-eligible and ineligible, with findings illustrating who may be more likely to receive services within the Canadian forensic mental health system.

Practical implications of overlapping mental capacity assessments.

Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers the practical implications of undertaking mental capacity assessments with a person across a range of different decisions.

Deprivation of liberty and the community nurse.

In this month's Policy column, Iwan Dowie discusses the 'deprivation of liberty' - which is used to safeguard patients who may be lacking sufficient mental capacity to manage their own safety. The author, through previous legal cases, shares how the Deprivation of Liberty Safeguards (DoLS)-an amendment to the Mental Capacity Act 2005-came into being, and the importance of community nurses in knowing the DoLS.

Determining capacity of people with dementia to take part in research: an electronic survey study of researcher confidence, competence and training needs.

BACKGROUND: Researchers are required to determine whether a person has capacity to consent to a research study before they are able to participate. The Mental Capacity Act and accompanying Code of Practice for England and Wales provide some guidance on this process, but researchers have identified that it can be difficult to determine capacity to consent when a person has complex cognitive or communication needs. This study aimed to understand the experiences and opinions of researchers who recruit people with dementia to research projects, to inform the future development of training resources. METHODS: A mixed method, cross-sectional, electronic survey was circulated via social media and research networks in England and Wales. The survey remained open for ten weeks and included open and closed questions exploring respondents' confidence in determining capacity in the context of recruiting people with dementia to consent, their views on training and support they have experienced and their suggestions for future training and support needs. RESULTS: 60 respondents completed the survey from across England and Wales. Although 75% of respondents had experience of determining capacity to consent with people with dementia to research, only 13% rated themselves as feeling 'very confident' in this. Qualitative content analysis of open responses led to the generation of six themes, explaining researchers' confidence, competence and future training needs in this area: (1) Researcher uncertainties, (2) Lack of time, (3) Balancing information complexity with accessibility, (4) Gatekeepers, (5) Existing enablers and (6) Envisioning future training. CONCLUSIONS: Researchers would benefit from specific training in undertaking conversations around consent with people with dementia. People with dementia may have fluctuating capacity, and despite support from caregivers, researchers have little practical guidance on methods of determining a person's ability to understand or appreciate the information they have provided during the consent process. Given the development of large complex trials within dementia research, there is an urgency to develop specific and practical guidance and training for researchers working with people with dementia and their families.

Capacity to Consent in Healthcare: A Systematic Review and Meta-Analysis Comparing Patients with Bipolar Disorders and Schizophrenia Spectrum Disorders.

Background: Mental capacity is a fundamental aspect that enables patients to fully participate in various healthcare procedures. To assist healthcare professionals (HCPs) in assessing patients' capacity, especially in the mental health field, several standardized tools have been developed. These tools include the MacArthur Competence Assessment Tool for Treatment (MacCAT-T), the MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR), and the Competence Assessment Tool for Psychiatric Advance Directives (CAT-PAD). The core dimensions explored by these tools include Understanding, Appreciation, Reasoning, and Expression of a choice. Objective: This meta-analysis aimed to investigate potential differences in decision-making capacity within the healthcare context among groups of patients with bipolar disorders (BD) and schizophrenia spectrum disorders (SSD). Methods: A systematic search was conducted on Medline/Pubmed, and Scopus. Additionally, Google Scholar was manually inspected, and a manual search of emerging reviews and reference lists of the retrieved papers was performed. Eligible studies were specifically cross-sectional, utilizing standardized assessment tools, and involving patients diagnosed with BD and SSD. Data from the studies were independently extracted and pooled using random-effect models. Hedges' g was used as a measure for outcomes. Results: Six studies were identified, with three studies using the MacCAT-CR, two studies the MacCAT-T, and one the CAT-PAD. The participants included 189 individuals with BD and 324 individuals with SSD. The meta-analysis revealed that patients with BD performed slightly better compared to patients with SSD, with the difference being statistically significant in the domain of Appreciation (ES = 0.23, 95% CI: 0.01 to 0.04, p = 0.037). There was no statistically significant difference between the two groups for Understanding (ES = 0.09, 95% CI:-0.10 to 0.27, p = 0.352), Reasoning (ES = 0.18, 95% CI: -0.12 to 0.47, p = 0.074), and Expression of a choice (ES = 0.23, 95% CI: -0.01 to 0.48, p = 0.60). In the sensitivity analysis, furthermore, when considering only studies involving patients in symptomatic remission, the difference for Appreciation also resulted in non-significant (ES = 0.21, 95% CI: -0.04 to 0.46, p = 0.102). Conclusions: These findings indicate that there are no significant differences between patients with BD and SSD during remission phases, while differences are minimal during acute phases. The usefulness of standardized assessment of capacity at any stage of the illness should be considered, both for diagnostic-therapeutic phases and for research and advance directives. Further studies are necessary to understand the reasons for the overlap in capacity between the two diagnostic categories compared in this study.

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

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

Artificial intelligence and mental capacity legislation: Opening Pandora's modem.

People with impaired decision-making capacity enjoy the same rights to access technology as people with full capacity. Our paper looks at realising this right in the specific contexts of artificial intelligence (AI) and mental capacity legislation. Ireland's Assisted Decision-Making (Capacity) Act, 2015 commenced in April 2023 and refers to 'assistive technology' within its 'communication' criterion for capacity. We explore the potential benefits and risks of AI in assisting communication under this legislation and seek to identify principles or lessons which might be applicable in other jurisdictions. We focus especially on Ireland's provisions for advance healthcare directives because previous research demonstrates that common barriers to advance care planning include (i) lack of knowledge and skills, (ii) fear of starting conversations about advance care planning, and (iii) lack of time. We hypothesise that these barriers might be overcome, at least in part, by using generative AI which is already freely available worldwide. Bodies such as the United Nations have produced guidance about ethical use of AI and these guide our analysis. One of the ethical risks in the current context is that AI would reach beyond communication and start to influence the content of decisions, especially among people with impaired decision-making capacity. For example, when we asked one AI model to 'Make me an advance healthcare directive', its initial response did not explicitly suggest content for the directive, but it did suggest topics that might be included, which could be seen as setting an agenda. One possibility for circumventing this and other shortcomings, such as concerns around accuracy of information, is to look to foundational models of AI. With their capabilities to be trained and fine-tuned to downstream tasks, purpose-designed AI models could be adapted to provide education about capacity legislation, facilitate patient and staff interaction, and allow interactive updates by healthcare professionals. These measures could optimise the benefits of AI and minimise risks. Similar efforts have been made to use AI more responsibly in healthcare by training large language models to answer healthcare questions more safely and accurately. We highlight the need for open discussion about optimising the potential of AI while minimising risks in this population.

The CRPD and mental health law reform in Scotland.

Scotland's mental health and capacity legislation and its implementation is underpinned by European Convention on Human Rights (ECHR) informed principles, and such legislation and its implementation has remained largely ECHR compliant. It is designed to protect individuals' autonomy from inappropriate and disproportionate nonconsensual intrusions but its scope is largely limited to this. However, since the legislation was enacted at the start of the twenty first century the UK subsequently ratified the UN Convention on the Rights of Persons with Disabilities (CRPD) which requires the law and related practice to focus on giving effect to all the rights of persons with mental disabilities (people living with psychosocial, cognitive and intellectual disabilities) on an equal basis with others and to actively support such equality in rights enjoyment. The Terms of Reference of the independent Scottish Mental Health Law Review (2019-2022) included considering and making recommendations to align Scotland's mental health and capacity legislation with the CRPD. After engaging widely with stakeholders its recommendations sought to strengthen the voice of persons who use services and of those who care for them, reduce the need for non-consensual measures and secure rights to the help and support necessary to live a good life. In order to achieve this, it recommended, amongst other things, a refocusing on mental health and capacity law together with a Human Rights Enablement, Supported Decision Making and Autonomous Decision Making framework.