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.

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.

The End of Life Choice Act: a proposed implementation and research agenda.

AIM: This article outlines the End of Life Choice Act 2019. It highlights some of the key implementation issues to ensure the system operates safely and equitably after the Act comes into force. It also identifies priorities for research to ensure issues are detected and provision of assisted dying (AD) is monitored. METHOD: We reviewed the End of Life Choice Act, assisted dying implementation literature and governmental reports. RESULTS: Effective system implementation depends on infrastructure, oversight and funding. In terms of service provision, we make recommendations about training for all health practitioners and providing practitioners; the nuances of discussing the "wish to hasten death"; conscientious objection; cultural safety for Maori; and minimising the complexity of delivering assisted dying practice. Structured research is needed to understand how the assisted dying system is operating. CONCLUSION: This article contributes by identifying core issues for practitioners, patients and policymakers. Implementation is an ongoing process that continues after the Act starts. Data are required to know whether access is equitable, who is choosing to make use of the law, whether providers are well informed and whether the safeguards are working as intended. The implications of how the Act is implemented are significant for patients, whanau, health professionals and society.

Safeguarding Vulnerable Autonomy? Situational Vulnerability, the Inherent Jurisdiction, and Insights from Feminist Philosophy.

The High Court continues to exercise its inherent jurisdiction to make declarations about interventions into the lives of situationally vulnerable adults with mental capacity. In the light of the protective responses of health care providers and the courts to decision-making situations involving capacitous vulnerable adults, this article has two aims. The first is diagnostic. The second is normative. The first aim is to identify the harms to a capacitous vulnerable adult's autonomy that arise based on the characterisation of situational vulnerability and autonomy as fundamentally opposed concepts or the failure to adequately acknowledge the conceptual relationship between them at common law. The second (normative) aim is to develop an account of self-authorised, intersubjective autonomy based on insights from analytic feminist philosophy. This approach not only attempts to capture the autonomy of capacitous vulnerable adults and account for the necessary harms to their autonomy that arise from standard common law responses to their situational vulnerability, it is also predicated on the distinctions between mental capacity, informed consent, and autonomy, meaning that it is better placed to fulfil the primary aim of the inherent jurisdiction-to facilitate the autonomy of vulnerable adults with capacity.

Errors and omissions in deprivation of liberty authorisation forms.

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

An unusual case of serial poisoning of family members.

The authors present an unusual criminal case of delusionally motivated, serial intrafamilial killings by a psychotic offender. Because the offender retained instrumental rationality and killed his victims by stealth, viz. surreptitious poisoning, the killing of his first victims went undetected. Persecutory delusions of being poisoned not uncommonly result in defensive violence, whereas in this case, religious delusions resulted in the mentally ill person killing others by poisoning them. Here, the psychotic offender killed his victims by means of poisoning based upon motivation driven by religious delusions. This case illustrates the importance of index of suspicion and appropriate investigation of mysterious deaths, and careful forensic psychiatric assessment to distinguish delusional versus extreme overvalued belief-motivated killings in addressing the insanity defense.

Ethical Framework to Guide Decisions of Treatment Over Objection.

BACKGROUND: Whether to proceed with a medical intervention over the objection of a patient who lacks capacity is a common problem facing practitioners. Despite this, there is a notable gap in the literature describing how to proceed in such situations in an ethically rigorous and consistent fashion. We elaborate on the practical application of the 2018 Rubin and Prager 7-question algorithm for ethics consultations about treatment over objection and we describe the impact of each of the 7 questions. STUDY DESIGN: We retrospectively review a series of consultations at Columbia University Irving Medical Center between April 2017 and May 2020 for treatment over objection in adult patients determined to lack capacity. Outcomes about the final ethics recommendation and the assessment of each of the 7 questions are reported. The statistical analysis was designed to determine which of the 7 questions in the algorithm were most predictive of the final ethics recommendation. RESULTS: In our series, there was an ethics recommendation to proceed over the objection of a patient in 63% of consultations. Although all 7 questions were considered to be important to the ethical analysis of a patient's situation, the presence of logistical barriers to treatment and the imminence of harm to a patient without treatment emerged as the most significant drivers of the recommendation of whether to proceed over objection or not. CONCLUSIONS: Cases of treatment over objection in a patient lacking capacity are frequently encountered problems that require a careful balance of patient autonomy and a physician's duty of beneficence. The application of the Rubin and Prager 7-question algorithm reliably guides a care team through such a complex ethical dilemma.

Conceptualising 'Undue Influence' in Decision-Making Support for People with Mental Disabilities.

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.

Guidelines for determining restorability of competency to stand trial and recommendations for involuntary treatment.

Over 50,000 defendants are referred for competency to stand trial evaluations each year in the United States (Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, New York, NY: The Guildford Press; 2018). Approximately 20% of those individuals are found by courts to be incompetent and are referred for "restoration" or remediation (Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, 4th edn. New York, NY: The Guildford Press; 2018; Bull Am Acad Psychiatry Law. 1991;19:63-9). The majority of those incompetent defendants meet criteria for psychotic illnesses (J Am Acad Psychiatry Law. 2007;35:34-43). Forensic mental health professionals frequently have such patients/defendants decline recommended treatment with psychotropic medication. For a significant minority of defendants diagnosed with psychotic disorders, treatment with medication is thought to be necessary to restore their competency to stand trial. Without psychiatric intervention to restore competency, defendants may be held for lengthy and costly hospitalizations while criminal proceedings are suspended. In these situations, clinicians are guided by the Supreme Court decision, Sell v. United States (2003). The Sell opinion describes several clinical issues courts must consider when determining whether a defendant can be treated involuntarily solely for the purpose of restoring his/her competency. This paper offers some guidance to clinicians and evaluators who are faced with making recommendations or decisions about involuntary treatment. Using a question and answer format, the authors discuss data that support a decision to request, or not request, court authorization for involuntary treatment. Specifically, eight questions are posed for forensic evaluators to consider in determining the prognosis or viability of successful treatment and restoration. Finally, a clinical vignette is also presented to highlight important factors to consider in Sell-related evaluations.

Profiles of juveniles with sex offense charges referred for competence evaluations.

Juveniles referred for adjudicative competence evaluations make up a subset of youth involved in the juvenile justice system. Among those referred for adjudicative competence evaluations, a significant number involve youth with current or past charges for sexual offenses. This study examines the profiles of youth with sexual offense charges who have been referred for competence evaluations at a state psychiatric hospital for children and adolescents. Differences between the characteristics of youth with and without sexual offenses were explored, and predictors of competence opinions were examined among the subset of youth with current or prior sexual charges (juveniles with sexual offenses, or JSOs). Findings indicated that youth with sexual offenses have several demographic, cognitive, clinical, and legal differences from youth without sexual offenses. Although youth with sexual offenses were less likely to be opined competent, presence of a sexual offense was not a predictor of competence opinions after controlling for other factors. Predictors of competence among JSOs were found to be similar to those among youth referred for competence evaluations in general. Primary diagnosis of an autism-related disorder was a unique predictor of being opined not competent among the JSO subgroup, but not the overall sample. Implications for practice, policy, and research are discussed.

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

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

A NHS Foundation Trust v MC [2020] EWCOP 33: Revisiting Best Interests and 'Altruistic' Incapacitous Stem Cell Donation.

In A NHS Foundation Trust v MC, the Court of Protection revisits the question of whether adults should be allowed to act as bone marrow or peripheral blood stem cell donors if they lack decision-making capacity. This case note explores the positive and problematic implications of the case based on points that were raised in the judicial reasoning that specifically relate to i) practical implications concerning the key players in this environment, ii) the risk analysis within the best interest determination, iii) altruism and iv) the wider context as it relates to minor donors who lack capacity.

Positive obligations to protect against deprivation of liberty in the community.

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