Legal and Ethics Considerations in Capacity Evaluation for Medical Aid in Dying.

Evaluating decisional capacity for patients seeking medical aid in dying (MAID) raises challenging legal, logistical, and ethics questions. The existing literature on the subject has been shaped largely by early disagreements over whether effective capacity assessment for such patients is ever possible, which in turn stemmed from debates over the ethics of MAID itself. In attempting to establish meaningful criteria for assessments, many jurisdictions have sought either to apply or to adapt models of capacity evaluation designed for other forms of medical decision-making, such as the widely used "four skills" model, failing to account for the fundamental differences in kind between these other decisions and MAID. This article seeks to reexamine these questions with a focus on two logistical matters (the appropriate credentialing for the evaluator and the potential liability of the evaluator) and three clinical matters (level of understanding, clinical scrutiny and certainty, and impairment) in an effort to raise legal and ethics concerns that remain unresolved, even as MAID is permitted in an increasing number of jurisdictions.

The Pandemic of Invisible Victims in American Mental Health.

Although considerable attention has been devoted to the concepts of "visible" and "invisible" victims in general medical practice, especially in relation to resource allocation, far less consideration has been devoted to these concepts in behavioral health. Distinctive features of mental health care in the United States help explain this gap. This essay explores three specific ways in which the American mental health care system protects potentially "visible" individuals at the expense of "invisible victims" and otherwise fails to meet the needs of great numbers of people with serious psychiatric conditions: prioritization of the wrong patients, incentivization of excessive caution among providers, and a narrow definition of psychiatry's purview. While each of these practices has been discussed elsewhere in the literature, they are rarely considered as part of an interrelated and systemic problem. Reconceptualizing these three issues as aspects of the larger conflict between the interests of "visible" and "invisible" victims may prove a path toward reform.

Medical Trainees Abroad: Neglected Human Rights Considerations.

Medical trainees (applicants, students, and house officers) often engage in global health initiatives to enhance their own education through research and patient care. These endeavors may concomitantly prove of value to host nations in filling unmet clinical needs. At present, healthcare institutions generally focus on the safety of the trainee and the welfare of potential patients and research subjects when sanctioning such programs. The American medical community has historically afforded less consideration to the ethics of engagement by trainees from the United States in nations known for serious human rights transgressions. This essay examines the ethics of such endeavors and argues for increased consideration of these broader considerations when trainees engage in global health work abroad.

Artificial intelligence in medicine and the negative outcome penalty paradox.

Artificial intelligence (AI) holds considerable promise for transforming clinical diagnostics. While much has been written both about public attitudes toward the use of AI tools in medicine and about uncertainty regarding legal liability that may be delaying its adoption, the interface of these two issues has so far drawn less attention. However, understanding this interface is essential to determining how jury behaviour is likely to influence adoption of AI by physicians. One distinctive concern identified in this paper is a 'negative outcome penalty paradox' (NOPP) in which physicians risk being penalised by juries in cases with negative outcomes, whether they overrule AI determinations or accept them. The paper notes three reasons why AI in medicine is uniquely susceptible to the NOPP and urges serious further consideration of this complex dilemma.

Capacity Reconceptualized: From Assessment Tool to Clinical Intervention.

Capacity evaluation has become a widely used assessment device in clinical practice to determine whether patients have the cognitive ability to render their own medical decisions. Such evaluations, which might be better thought of as "capacity challenges," are generally thought of as benign tools used to facilitate care. This paper proposes that such challenges should be reconceptualized as significant medical interventions with their own set of risks, side effects, and potentially deleterious consequences. As a result, a cost-benefit analysis should be implemented prior to imposing such capacity challenges, and efforts should be made to minimize such challenges in situations where they are unlikely to alter the course of treatment.

Social Support: From Exclusion Criteria to Medical Service.

One of the criteria used by many transplant centers in assessing psychosocial eligibility for solid organ transplantation is social support. Yet, social support is a highly controversial requirement that has generated ongoing debate between ethicists and clinicians who favor its consideration (i.e., utility maximizers) and those who object to its use on equity grounds (i.e., equity maximizers). The assumption underlying both of these approaches is that social support is not a commodity that can be purchased in the marketplace. This essay argues for the reconceptualization of social support as a product that can-and should-be purchased for transplant candidates to render them eligible for transplant.

Decisional Capacity After Dark: Is Autonomy Delayed Truly Autonomy Denied?

The model for capacity assessment in the United States and much of the Western world relies upon the demonstration of four skills including the ability to communicate a clear, consistent choice. Yet such assessments often occur at only one moment in time, which may result in the patient expressing a choice to the evaluator that is highly inconsistent with the patient's underlying values and goals, especially if a short-term factor (such as frustration with the hospital staff) distorts the patient's preferences momentarily. These challenges are particularly concerning in cases, which arise frequently in hospital settings, in which patients demand immediate self-discharge, often during off-hours, while faced with life-threatening risks. This paper examines the distinctive elements that shape such cases and explores their ethical implications, ultimately offering a model for such situations that can be operationalized.

Ethical Issues Surrounding Facial Feminization Surgery: Five Major Considerations.

Facial feminization surgery (FFS) is a form of gender-affirming care for the transgender population that is currently a highly debated topic both inside and outside of the medical community. Currently, a paucity of information is available in plastic surgery literature on ethical issues surrounding FFS. In this paper, we discuss 5 major ethical considerations for plastic surgeons with regard to FFS: (1) how society's changing view of gender has impacted the importance of FFS; (2) whether FFS is medically necessary and should be covered by insurance; (3) to what extent resources should be invested in removing barriers to access FFS; (4) how patient selection criteria should address the irreversibility of the procedure and age of consent; and (5) how femininity and beauty standards contribute to each other and whether they can be disentangled. This paper aims to analyze the arguments made for and against each of these 5 nuanced issues and to expand these debates from the theoretical to the practical by suggesting approaches for reconciliation.

The Statutory Codification of Decisional Capacity Standards.

The adoption of the widely used four specific skills model of decisional capacity assessment, first proposed by Appelbaum and Grisso in 1988, has become widely accepted in clinical practice. Many jurisdictions have, through legislative action, incorporated one or more of these skills into state law as part of the legal definition of decisional capacity. These statutes pose a challenge for physicians hoping to revise these criteria, as some commentators have recently proposed. This article categorizes and analyzes existing state statutes that define decisional capacity or designate certain classes of individuals to render such assessments. Many of these statutes incorporate aspects of the four skills model into state law, such that legislative action would be required to affect significant changes in methods of capacity assessment. As a result, physicians in many jurisdictions are unable to modify these criteria on their own. Any effort to alter capacity assessment standards will have to take into account the potential challenges to enacting statutory change at the outset of such efforts.

Ethical considerations for the use of artificial intelligence in medical decision-making capacity assessments.

The rapid advancement of artificial intelligence (AI) and machine learning are providing new tools to clinicians. AI tools have the potential to process vast amounts of data in a short amount of time, providing new insights and changing how we approach complicated healthcare problems. AI has the potential to assist clinicians in medical decision-making capacity assessments by providing additional insights to an evaluation process that currently lacks universal objective standards. However, despite the promise of AI in this setting, there remain significant concerns making it unlikely to replace human evaluators anytime soon. AI remains highly susceptible to biased inputs and thus biased decisions, raises questions about autonomy, and creates uncertainty for who is accountable for the ultimate decision of capacity. In this paper we explore these ethical considerations of using AI for capacity assessments. While we acknowledge AI may not be ready to replace physicians in determining patient medical-decision making capacity, these new technologies have significant near-term potential as a tool to screen patients, uncover physician biases, and guide next steps after a capacity determination has been made.

Financial Equity in Involuntary Treatment for Substance Use Disorders.

Involuntary civil commitment for individuals who are chronically impaired as a result of their substance use remains highly controversial. At present, 37 states have legalized this practice. Increasingly, states are allowing private third-parties, such as friends or relatives of the patient, to petition courts for involuntary treatment. One such approach, modeled on Florida's Marchman Act, does not determine status based on the petitioning party's willingness to commit to pay for care. In contrast, Kentucky's approach, widely known as "Casey's Law," predicates such involuntary commitment on the third party's willingness to commit in advance to pay for the patient's treatment. This article reviews the history and current status of existing law on this subject and then argues that psychiatrists should advocate strongly against involuntary substance treatment laws that rely upon third-party pledges of payment.

Anything You Do Not Say Can Be Used against You: Volitional Refusal to Engage in Decisional Capacity Assessment.

AbstractThe most widely accepted model of decisional capacity assessment requires that a patient communicate a clear and consistent choice to the evaluator. This approach works effectively when patients prove unable to express a choice owing to physical, psychological, or cognitive limitations. In contrast, the approach raises ethics concerns when applied to patients who volitionally refuse to communicate a choice. This article examines the ethical issues that arise in such cases and offers a rubric for addressing decisional capacity under such circumstances.

Rethinking Second Chances: When Rejected Liver Transplant Candidates Seek Reevaluation Elsewhere.

AbstractLiver transplantation offers a lifesaving treatment for patients suffering from end-stage liver failure, but not all candidates in the United States are eligible owing to center-specific criteria. When a patient is rejected at a transplantation center for medical, surgical, or psychosocial issues, they are often referred to other centers. We focus on this practice of reevaluation at a second center when the candidate was rejected for psychosocial reasons. We review the criteria used by health professionals to determine psychosocial eligibility and present three case examples from a large teaching hospital that demonstrate this phenomenon in practice. The cases illustrate the conflicts among autonomy, beneficence, nonmaleficence, and justice. We present arguments for and against this practice and provide concrete solutions as a path forward.

Clinician Perspectives for Mental Health Delivery Following COVID-19 in Carceral Settings: A Pilot Study.

We aimed to understand clinician perspectives on mental healthcare delivery during COVID-19 and the utility of tele-mental health services in carceral settings. A survey was administered in November 2022 through the American College of Correctional Physicians listserv. A nationwide sample of 55 respondents included 78.2% male (n = 43) and 21.8% female (n = 12), 49.1% active clinicians (n = 27) and 50.9% medical directors (n = 28), with a median of 12 and mean of 14.5 years working in carceral settings. Most agreed that mental telehealth services could serve as a stopgap amid infection prevention measures and resource-limited settings with an increasing role moving forward (80.0%, n = 44) but may not be sufficient to replace in-person services completely. Access to mental healthcare is vital in helping achieve optimal health during incarceration. Most clinicians in a nationwide survey report an essential role of mental telehealth in the future, although they vary in beliefs on the present implementation. Future efforts should further identify facilitators and barriers and bolster delivery models, particularly via e-health.