Decision making capacity for treatment in psychiatric inpatients: a systematic review and meta-analysis.

Decision-making capacity (DMC) among psychiatric inpatients is a pivotal clinical concern. A review by Okai et al. (2007) suggested that most psychiatric inpatients have DMC for treatment, and its assessment is reliable. Nevertheless, the high heterogeneity and mixed results from other studies mean there is considerable uncertainty around this topic. This study aimed to update Okai's research by conducting a systematic review with meta-analysis to address heterogeneity. We performed a systematic search across four databases, yielding 5351 results. We extracted data from 20 eligible studies on adult psychiatric inpatients, covering DMC assessments from 2006 to May 2022. A meta-analysis was conducted on 11 papers, and a quality assessment was performed. The study protocol was registered on PROSPERO (ID: CRD42022330074). The proportion of patients with DMC for treatment varied widely based on treatment setting, the specific decision and assessment methods. Reliable capacity assessment was feasible. The Mini-Mental State Examination (MMSE), Global Assessment of Function (GAF), and Brief Psychiatric Rating Scale (BPRS) predicted clinical judgments of capacity. Schizophrenia and bipolar mania were linked to the highest incapacity rates, while depression and anxiety symptoms were associated with better capacity and insight. Unemployment was the only sociodemographic factor correlated with incapacity. Assessing mental capacity is replicable, with most psychiatric inpatients able to make treatment decisions. However, this capacity varies with admission stage, formal status (involuntary or voluntary), and information provided. The severity of psychopathology is linked to mental capacity, though detailed psychopathological data are limited.

Mental capacity-why look for a paradigm shift?

Challenges to the legitimacy of mental capacity over the past 10 years have been spearheaded by the Committee on the Rights of Persons with Disabilities, the treaty body for the UN Convention on the Rights of Persons with Disabilities (CRPD). This challenge has been asserted to have produced a 'paradigm shift'. In this article, we examine why that interpretation has had such limited traction in the legal policy arena, and whether it should have traction. We also analyse whether the Committee has subtly but importantly shifted its position. We then develop an argument that the true goal, compatible with the CRPD, is the satisfactory determination of whether a person has or lacks mental capacity to make or take a relevant decision. Our article contextualises multi-disciplinary, research-informed guidelines designed as a contribution to satisfactory determination. While our article is based upon the position in England and Wales, we suggest that our conclusions are of wider application.

Interpersonal influences on decision-making capacity: a content analysis of court judgments.

For many purposes in England and Wales, the Court of Protection determines whether a person has or lacks capacity to make a decision, by applying the test within the Mental Capacity Act 2005. This test is regularly described as a cognitive test with cognitive processes discussed as internal characteristics. However, it is unclear how the courts have framed interpersonal influence as negatively impacting upon a person's decision-making processes in a capacity assessment context. We reviewed published court judgments in England and Wales in which interpersonal problems were discussed as relevant to capacity. Through content analysis, we developed a typology that highlights five ways the courts considered influence to be problematic to capacity across these cases. Interpersonal influence problems were constructed as (i) P's inability to preserve their free will or independence, (ii) restricting P's perspective, (iii) valuing or dependence on a relationship, (iv) acting on a general suggestibility to influence, or (v) P denying facts about the relationship. These supposed mechanisms of interpersonal influence problems are poorly understood and clearly merit further consideration. Our typology and case discussion are a start towards more detailed practice guidelines, and raise questions as to whether mental capacity and influence should remain legally distinct.

Broad concepts and messy realities: optimising the application of mental capacity criteria.

Most jurisdictions require that a mental capacity assessment be conducted using a functional model whose definition includes several abilities. In England and Wales and in increasing number of countries, the law requires a person be able to understand, to retain, to use or weigh relevant information and to communicate one's decision. But interpreting and applying broad and vague criteria, such as the ability 'to use or weigh' to a diverse range of presentations is challenging. By examining actual court judgements of capacity, we previously developed a descriptive typology of justifications (rationales) used in the application of the Mental Capacity Act (MCA) criteria. We here critically optimise this typology by showing how clear definitions-and thus boundaries-between the criteria can be achieved if the 'understanding' criterion is used narrowly and the multiple rationales that fall under the ability to 'use or weigh' are specifically enumerated in practice. Such a typology-aided practice, in theory, could make functional capacity assessments more transparent, accountable, reliable and valid. It may also help to create targeted supports for decision making by the vulnerable. We also discuss how the typology could evolve legally and scientifically, and how it lays the groundwork for clinical research on the abilities enumerated by the MCA.

Should age matter in COVID-19 triage? A deliberative study.

The COVID-19 pandemic put a large burden on many healthcare systems, causing fears about resource scarcity and triage. Several COVID-19 guidelines included age as an explicit factor and practices of both triage and 'anticipatory triage' likely limited access to hospital care for elderly patients, especially those in care homes. To ensure the legitimacy of triage guidelines, which affect the public, it is important to engage the public's moral intuitions. Our study aimed to explore general public views in the UK on the role of age, and related factors like frailty and quality of life, in triage during the COVID-19 pandemic. We held online deliberative workshops with members of the general public (n=22). Participants were guided through a deliberative process to maximise eliciting informed and considered preferences. Participants generally accepted the need for triage but strongly rejected 'fair innings' and 'life projects' principles as justifications for age-based allocation. They were also wary of the 'maximise life-years' principle, preferring to maximise the number of lives rather than life years saved. Although they did not arrive at a unified recommendation of one principle, a concern for three core principles and values eventually emerged: equality, efficiency and vulnerability. While these remain difficult to fully respect at once, they captured a considered, multifaceted consensus: utilitarian considerations of efficiency should be tempered with a concern for equality and vulnerability. This 'triad' of ethical principles may be a useful structure to guide ethical deliberation as societies negotiate the conflicting ethical demands of triage.

Unwell in hospital but not incapable: cross-sectional study on the dissociation of decision-making capacity for treatment and research in in-patients with schizophrenia and related psychoses.

BACKGROUND: Consent to research with decision-making capacity for research (DMC-R) is normally a requirement for study participation. Although the symptoms of schizophrenia and related psychoses are known to affect decision-making capacity for treatment (DMC-T), we know little about their effect on DMC-R.AimsWe aimed to determine if DMC-R differs from DMC-T in proportion and associated symptoms in an in-patient sample of people with schizophrenia and related psychoses. METHOD: Cross-sectional study of psychiatric in-patients admitted for assessment and/or treatment of schizophrenia and related psychoses. We measured DMC-R and DMC-T using 'expert judgement' clinical assessment guided by the MacArthur Competence Assessment Tool for Clinical Research, the MacArthur Competence Assessment Tool for Treatment and the legal framework of the Mental Capacity Act (2005), in addition to symptoms of psychosis. RESULTS: There were 84 participants in the study. Half the participants had DMC-R (51%, 95% CI 40-62%) and a third had DMC-T (31%, 95% CI 21-43%) and this difference was statistically significant (P < 0.01). Thought disorder was most associated with lacking DMC-R (odds ratio 5.72, 95% CI 2.01-16.31, P = 0.001), whereas lack of insight was most associated with lacking DMC-T (odds ratio 26.34, 95% CI 3.60-192.66, P = 0.001). With the exception of improved education status and better DMC-R, there was no effect of sociodemographic variables on either DMC-R or DMC-T. CONCLUSIONS: We have shown that even when severely unwell, people with schizophrenia and related psychoses in in-patient settings commonly retain DMC-R despite lacking DMC-T. Furthermore, different symptoms have different effects on decision-making abilities for different decisions. We should not view in-patient psychiatric settings as a research 'no-go area' and, where appropriate, should recruit in these settings.Declaration of interestNone.

Misevaluating the Future: Affective Disorder and Decision-Making Capacity for Treatment - A Temporal Understanding.

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.

Clinical assessment of decision-making capacity in acquired brain injury with personality change.

Assessment of decision-making capacity (DMC) can be difficult in acquired brain injury (ABI) particularly with the syndrome of organic personality disorder (OPD) (the "frontal lobe syndrome"). Clinical neuroscience may help but there are challenges translating its constructs to the decision-making abilities considered relevant by law and ethics. An in-depth interview study of DMC in OPD was undertaken. Six patients were purposefully sampled and rich interview data were acquired for scrutiny using interpretative phenomenological analysis. Interview data revealed that awareness of deficit and thinking about psychological states can be present. However, the awareness of deficit may not be "online" and effectively integrated into decision-making. Without this online awareness of deficit the ability to appreciate or use and weigh information in the process of deciding some matters appeared absent. We argue that the decision-making abilities discussed are: (1) necessary for DMC, (2) threatened by ABI , and (3) assessable at interview. Some advice for practically incorporating these abilities within assessments of DMC in patients with OPD is outlined.

Mental capacity assessment in the multi-professional real world: a qualitative study of six areas of uncertainty.

Background: The Mental Capacity Act 2005 of England and Wales is a ground-breaking piece of legislation with reach into healthcare, social care and legal settings. Professionals have needed to develop skills to assess mental capacity and handle malign influence, but it is unclear how assessments are implemented in real world settings. Our previously reported survey found professionals juggling competing resources in complex systems, often struggling to stay up to date with law.The current follow-up study uses one-to-one interviews of professionals to characterise in detail six areas of uncertainty faced when assessing mental capacity, whilst suggesting ways to make improvements. Methods: Forty-four healthcare, social care and legal professionals were interviewed, using a semi-structured topic guide. Transcripts were analysed using framework analysis: a qualitative technique built to investigate healthcare policy. Results: Our topic guide generated 21 themes. In relation to the six areas of uncertainty: 1) Many participants stressed the importance of capturing a holistic view, adding that their own profession was best-placed for this - although a medical diagnosis was often needed. 2) The presumption of capacity was a laudable aim, though not always easy to operationalise and occasionally being open to abuse. 3) There was cautious interest in psychometric testing, providing a cognitive context for decisions. 4) Undue influence was infrequent, but remained under-emphasised in training. 5) Multi-professional assessments were common, despite doubts about fitting these within local resources and the law. 6) Remote assessment was generally acceptable, if inadequate for identifying coercion. Conclusions: Practical constraints and competing demands were reported by professionals working within real world systems. Assessment processes must be versatile, equally applicable in routine and emergency settings, across diverse decisional types, for both generalist and specialist assessors, and able to handle coercion. Recognising these challenges will guide development of best practices in assessment and associated policy.

The Mental Capacity Act 2005 of England and Wales is an important piece of law for professionals working in health and social care or as lawyers. It explains how to assess whether a person is able to take a particular decision for themselves ­ and therefore has "mental capacity" in the eyes of society. Professionals have needed to develop skills to assess mental capacity, and to recognise situations where family or friends are trying to influence decisions for their own interests. We previously reported a large scale survey of professionals who assess mental capacity. The current study uses one-to-one interviews, exploring in detail six areas of uncertainty around capacity assessment which were described in that survey. We interviewed 44 health and social care professionals and lawyers, then analysed their responses. We found 21 themes relating to the six areas of uncertainty: 1) The importance of capturing a holistic view of the person's life; 2) Challenges for assessors when trying to presume initially that a person does have mental capacity, as the law asks assessors to do; 3) Detailed testing by psychologists could be useful; 4) Other people were rarely thought to try to influence decisions, but awareness of this possibility should be emphasised in training; 5) Multi-professional assessments were common, despite doubts about whether these were possible in all settings or fit with the law; 6) Remote assessment was generally acceptable, but was poor at identifying if people were being influenced. Practical constraints and competing demands were reported by professionals working within real world systems. Our analysis suggests that mental capacity assessment processes need to be versatile, so they can work well in routine and emergency settings and for a range of types of decisions. Recognising these challenges will guide development of best practices in assessment and associated policy.

Decision-making capacity for treatment in psychiatric and medical in-patients: cross-sectional, comparative study.

BACKGROUND: Is the nature of decision-making capacity (DMC) for treatment significantly different in medical and psychiatric patients? AIMS: To compare the abilities relevant to DMC for treatment in medical and psychiatric patients who are able to communicate a treatment choice. METHOD: A secondary analysis of two cross-sectional studies of consecutive admissions: 125 to a psychiatric hospital and 164 to a medical hospital. The MacArthur Competence Assessment Tool - Treatment and a clinical interview were used to assess decision-making abilities (understanding, appreciating and reasoning) and judgements of DMC. We limited analysis to patients able to express a choice about treatment and stratified the analysis by low and high understanding ability. RESULTS: Most people scoring low on understanding were judged to lack DMC and there was no difference by hospital (P = 0.14). In both hospitals there were patients who were able to understand yet lacked DMC (39% psychiatric v. 13% medical in-patients, P<0.001). Appreciation was a better 'test' of DMC in the psychiatric hospital (where psychotic and severe affective disorders predominated) (P<0.001), whereas reasoning was a better test of DMC in the medical hospital (where cognitive impairment was common) (P = 0.02). CONCLUSIONS: Among those with good understanding, the appreciation ability had more salience to DMC for treatment in a psychiatric setting and the reasoning ability had more salience in a medical setting.

Assessments of mental capacity in psychiatric inpatients: a retrospective cohort study.

BACKGROUND: The Mental Capacity Act 2005 (MCA) was introduced in 2007 to protect vulnerable individuals who lack capacity to make decisions for themselves and to provide a legal framework for professionals to assess incapacity. The impact of the MCA on clinical practice is not known. This study aims to evaluate how frequently mental capacity is assessed in psychiatric inpatients, whether the criteria for determining capacity set out in the MCA are used in practice, and whether this has increased with the introduction of the MCA. METHOD: A retrospective cohort study was carried out using a case register of South East London mental health service users. The Case Register Interactive Search (CRIS) system enabled searching and retrieval of anonymised information on patients admitted to the South London and Maudsley NHS Foundation Trust since 2006. The presence and outcomes of documented mental capacity assessments in psychiatric admissions between May 2006 and February 2010 were identified and demographic information on all admissions was retrieved. RESULTS: Capacity assessments were documented in 1,732/17,744 admissions (9.8%). There was a significant increase in the frequency of capacity assessments carried out over the study period of 0.3 percentage points per month (95% CI 0.26-0.36, p < 0.00001). In only 14.7% of capacity assessments were the MCA criteria for assessing capacity explicitly used. CONCLUSIONS: Over the period of the introduction of the MCA there has been a significant increase in the number of mental capacity assessments carried out on psychiatric inpatients. Although mental health services are considering the issue of capacity more frequently, mental capacity assessments are inconsistently applied and do not make adequate use of MCA criteria.

Depression and decision-making capacity for treatment or research: a systematic review.

BACKGROUND: Psychiatric disorders can pose problems in the assessment of decision-making capacity (DMC). This is so particularly where psychopathology is seen as the extreme end of a dimension that includes normality. Depression is an example of such a psychiatric disorder. Four abilities (understanding, appreciating, reasoning and ability to express a choice) are commonly assessed when determining DMC in psychiatry and uncertainty exists about the extent to which depression impacts capacity to make treatment or research participation decisions. METHODS: A systematic review of the medical ethical and empirical literature concerning depression and DMC was conducted. Medline, EMBASE and PsycInfo databases were searched for studies of depression and consent and DMC. Empirical studies and papers containing ethical analysis were extracted and analysed. RESULTS: 17 publications were identified. The clinical ethics studies highlighted appreciation of information as the ability that can be impaired in depression, indicating that emotional factors can impact on DMC. The empirical studies reporting decision-making ability scores also highlighted impairment of appreciation but without evidence of strong impact. Measurement problems, however, looked likely. The frequency of clinical judgements of lack of DMC in people with depression varied greatly according to acuity of illness and whether judgements are structured or unstructured. CONCLUSIONS: Depression can impair DMC especially if severe. Most evidence indicates appreciation as the ability primarily impaired by depressive illness. Understanding and measuring the appreciation ability in depression remains a problem in need of further research.

Insight and equality: A systematic review and meta-analysis of socio-demographic associations.

BACKGROUND: Insight into illness is often used in clinical and legal contexts, for example, as evidence of decision-making capacity. However, it is unclear whether this disadvantages certain groups protected under equality legislation. To our knowledge, this question has yet to be addressed systematically. Therefore, the present study reviews empirical studies that look at the relationship between insight and sociodemographic variables. METHODS: A systematic search of six bibliographic databases (CENTRAL, CINAHL, Cochrane Library of Systematic Reviews, EMBASE, MEDLINE and PsycINFO) was conducted, which yielded 6,192 results. Study characteristics and outcomes (associations between insight and socio-demographic variables) were then extracted from 207 eligible studies. This included protected characteristics under the Equality Act (2010): age, sex, ethnicity, marital status and religion. Weighted confidence estimates were calculated and relevant moderators included in a random effects meta-analysis. A study protocol was registered prospectively on PROSPERO, ID: CRD42019120117. RESULTS: Insight was not strongly associated with any sociodemographic variable. Better insight was weakly but significantly associated with white ethnicity, being employed, younger age and more years of education. The age associations were mostly explained by relevant moderating variables. For people with schizophrenia, the associations between sociodemographic variables and insight were comparable to associations with decision making capacity. CONCLUSIONS: Our results suggest that insight is not strongly associated with any sociodemographic variables. Further research is needed to clarify potential associations, particularly with non-white ethnicity and proxies for social support.

Difficult Capacity Cases-The Experience of Liaison Psychiatrists. An Interview Study Across Three Jurisdictions.

Background: Assessment of capacity for treatment and discharge decisions is common in the general hospital. Liaison psychiatrists are often asked to support the treating medical or surgical team in difficult capacity assessments. However, empirical research on identification and resolution of difficult capacity cases is limited. Some studies have identified certain patient, decisional, and interpersonal factors which cause difficulty, but no study has explored how these issues are resolved in practice. Our study therefore aimed to describe how experienced liaison psychiatrists identify and resolve difficult capacity cases in a general hospital setting. Methods: We carried out semi-structured interviews with 26 liaison psychiatrists from England, Scotland, and New Zealand, on their most difficult capacity cases. Thematic analysis was used to examine types of difficulty and how these were resolved in practice. Summaries were prepared and example quotes extracted to illustrate phenomena described. Results: We identified four types of difficulty in capacity assessment, spanning both clinical and ethical domains: 1) Difficulty determining whether the decision is the patient's own or driven by illness, 2) Difficulty in applying ethical principles, 3) Difficulty in avoiding personal bias, and 4) Procedural difficulties. The liaison psychiatrists presented as self-reflective and aware of challenges and pitfalls in hard cases. We summarized their creative strategies to resolve difficulty in assessment. Conclusion: Practitioners approaching difficult capacity cases require both clinical skills, e.g., to uncover subtle illness impairing decision-making and to consider interpersonal dynamics, and ethical skills, e.g., to negotiate the role of values and risks in capacity assessment. Education and training programmes should incorporate both aspects and could include the resolution strategies identified in our study. Practitioners, supported by health and social care systems, should work to develop self-aware and reflective capacity assessment practice.

Senior doctors' opinions of rational suicide.

CONTEXT: The attitudes of medical professionals towards physician assisted dying have been widely discussed. Less explored is the level of agreement among physicians on the possibility of 'rational suicide'-a considered suicide act made by a sound mind and a precondition of assisted dying legislation. OBJECTIVE: To assess attitudes towards rational suicide in a representative sample of senior doctors in England and Wales. METHODS: A postal survey was conducted of 1000 consultants and general practitioners randomly selected from a commercially available database. The main outcome of interest was level of agreement with a statement about rational suicide. RESULTS: The corrected participation rate was 50%; 363 questionnaires were analysed. Overall 72% of doctors agreed with the possibility of rational suicide, 17% disagreed, and 11% were neutral. Doctors who identified themselves as being more religious were more likely to disagree. Some doctors who disagreed with legalisation of physician assisted suicide nevertheless agreed with the concept of rational suicide. CONCLUSIONS: Most senior doctors in England and Wales feel that rational suicide is possible. There was no association with specialty. Strong religious belief was associated with disagreement, although levels of agreement were still high in people reporting the strongest religious belief. Most doctors who were opposed to physician assisted suicide believed that rational suicide was possible, suggesting that some medical opposition is best explained by other factors such as concerns of assessment and protection of vulnerable patients.

Mired in confusion: making sense of the Deprivation of Liberty Safeguards.

INTRODUCTION: There is uncertainty about how to identify deprivation of liberty and the interface of the Mental Health Act and Mental Capacity Act Safeguards. OBJECTIVE To increase current understanding by exploring how an expert legal panel interpret existing case law relating to deprivation of liberty in the clinical setting. Design Clinical vignettes of real patients were used to explore lawyers' thinking about important factors that: (1) distinguish lawful restriction from deprivation of liberty and (2) govern the choice between safeguard regimes when there is deprivation of liberty. The relative importance of such factors was discussed in a consensus meeting using a modified nominal group approach. Participants and setting Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. RESULTS: Lawyers attributed key importance to a patient's 'freedom to leave' and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. CONCLUSIONS Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.

Experiences of assessing mental capacity in England and Wales: A large-scale survey of professionals.

Background: The Mental Capacity Act (2005) of England and Wales described in statute a test to determine whether a person lacked the "mental capacity" to make a particular decision. No large-scale survey has explored experiences of capacity assessment across professional groups. Methods: We administered an opportunistic self-report questionnaire survey of professionals who undertake capacity assessments in England and Wales (n= 611). Topics of interest included; how often and where capacity assessment took place, self-ratings of competency and challenges experienced in assessment, use of psychological testing and concerns about undue influence. We analysed the quantitative responses using a mixed-methods approach using regression methods for the quantitative ratings and a thematic analysis for qualitative data. Results: Our sample included 307/611 (50.2%), social workers, 89/611 (14.6%) psychiatrists, 62/611 (10.1%) nurses, 46/611 (7.5%) clinical psychologists, 30/611 (4.9%) doctors from other medical specialties, 12/611 (2.0%) speech and language therapists and 8/611 (1.3%) solicitors. 53% of these professionals undertook more than 25 capacity assessments per year, with psychiatrists, social workers and nurses undertaking them the most frequently. Most professionals reported high self-ratings of confidence in their assessment skills, although non-psychiatrist doctors rated themselves significantly lower than other groups (p< .005). Most professionals (77.1%) were at least moderately concerned about undue influence, with people with dementia and learning disabilities and older adults considered to be the most at risk. Qualitative themes for challenges in capacity assessment included inter-disciplinary working, complicated presentations and relational issues such as interpersonal influence. Requests for support mainly focused on practical issues. Conclusions: Most professionals feel confident in their ability to assess capacity but note substantial challenges around practical and relational issues. Undue influence is a particularly common concern amongst professionals when working with service users with dementia and learning disabilities which public services and policy makers need to be mindful of.

Applying decision-making capacity criteria in practice: A content analysis of court judgments.

BACKGROUND/OBJECTIVES: Many jurisdictions use a functional model of capacity with similar legal criteria, but there is a lack of agreed understanding as to how to apply these criteria in practice. We aimed to develop a typology of capacity rationales to describe court practice in making capacity determinations and to guide professionals approaching capacity assessments. METHODS: We analysed all published cases from courts in England and Wales [Court of Protection (CoP) judgments, or Court of Appeal cases from the CoP] containing rationales for incapacity or intact capacity(n = 131). Qualitative content analysis was used to develop a typology of capacity rationales or abilities. Relationships between the typology and legal criteria for capacity [Mental Capacity Act (MCA)] and diagnoses were analysed. RESULTS: The typology had nine categories (reliability: kappa = 0.63): 1) to grasp information or concepts, 2) to imagine/ abstract, 3) to remember, 4) to appreciate, 5) to value/ care, 6) to think through the decision non-impulsively, 7) to reason, 8) to give coherent reasons, and 9) to express a stable preference. Rationales most frequently linked to MCA criterion 'understand' were ability to grasp information or concepts (43%) or to appreciate (42%), and to MCA criterion 'use or weigh' were abilities to appreciate (45%) or to reason (32%). Appreciation was the most frequently cited rationale across all diagnoses. Judges often used rationales without linking them specifically to any MCA criteria (42%). CONCLUSIONS: A new typology of rationales could bridge the gap between legal criteria for decision-making capacity and phenomena encountered in practice, increase reliability and transparency of assessments, and provide targets for decision-making support.

Retrospective views of psychiatric in-patients regaining mental capacity.

BACKGROUND: An individual's right to self-determination in treatment decisions is a central principle of modern medical ethics and law, and is upheld except under conditions of mental incapacity. When doctors, particularly psychiatrists, override the treatment wishes of individuals, they risk conflicting with this principle. Few data are available on the views of people regaining capacity who had their treatment wishes overridden. AIMS: To investigate individuals' views on treatment decisions after they had regained capacity. METHOD: One hundred and fifteen people who lacked capacity to make treatment decisions were recruited from a sample of consecutively admitted patients to a large psychiatric hospital. After 1 month of treatment we asked the individuals for their views on the surrogate treatment decisions they received. RESULTS: Eighty-three per cent (95% CI 66-93) of people who regained capacity gave retrospective approval. Approval was no different between those admitted informally or involuntarily using Mental Health Act powers (chi(2) = 1.52, P = 0.47). Individuals were more likely to give retrospective approval if they regained capacity (chi(2) = 14.2, P = 0.001). CONCLUSIONS: Most people who regain capacity following psychiatric treatment indicate retrospective approval. This is the case even if initial treatment wishes are overridden. These findings moderate concerns both about surrogate decision-making by psychiatrists and advance decision-making by people with mental illness.

Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales.

BACKGROUND: In England and Wales mental health services need to take account of the Mental Capacity Act 2005 and the Mental Health Act 1983. The overlap between these two causes dilemmas for clinicians. AIMS: To describe the frequency and characteristics of patients who fall into two potentially anomalous groups: those who are not detained but lack mental capacity; and those who are detained but have mental capacity. METHOD: Cross-sectional study of 200 patients admitted to psychiatric wards. We assessed mental capacity using a semi-structured interview, the MacArthur Competence Assessment Tool for Treatment (MacCAT-T). RESULTS: Of the in-patient sample, 24% were informal but lacked capacity: these patients felt more coerced and had greater levels of treatment refusal than informal participants with capacity. People detained under the Mental Health Act with capacity comprised a small group (6%) that was hard to characterise. CONCLUSIONS: Our data suggest that psychiatrists in England and Wales need to take account of the Mental Capacity Act, and in particular best interests judgments and deprivation of liberty safeguards, more explicitly than is perhaps currently the case.