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.

Susceptibility to Undue Influence: The Role of the Medical Expert in Estate Litigation.

OBJECTIVES: Medical experts are increasingly asked to assist the courts with Will challenges based on the determination of testamentary capacity and potential undue influence. Unlike testamentary capacity, the determination of undue influence has been relatively neglected in the medical literature. We aim to improve the understanding of the medical expert role in providing the courts with an opinion on susceptibility to undue influence in estate litigation. METHOD: Medical experts with experience in the assessment of testamentary capacity and susceptibility to undue influence collaborated with experienced estate litigators. The medical literature on undue influence was reviewed and integrated. The lawyers provided a historical background and a legal perspective on undue influence in estate litigation and the medical experts provided a clinical perspective on the determination of susceptibility to undue influence. Together, they provided recommendations for how the medical expert could best assist the court. RESULTS: Susceptibility to undue influence is frequently used in estate litigation to challenge the validity of Wills and is defined as subversion of the testator's free will by an influencer, resulting in changes to the distribution of the estate. While a determination of undue influence includes the documentation of indicia or suspicious circumstances under which the Will was drafted and executed, medical experts should focus primarily on the susceptibility of the testator to undue influence. This susceptibility should be based on a consideration of cognitive function, psychiatric symptoms, physical and behavioural function, with evidence derived from the medical documentation, the medical examination, and the history. CONCLUSIONS: The determination of undue influence is a legal one, but medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the testator's susceptibility to undue influence.

'Anyone who commits such a cruel crime, must be criminally irresponsible': context effects in forensic psychological assessment.

In recent years, it has become clear that expert opinion can be biased. It has been argued that forensic psychologists may also be susceptible to bias. In the present study, the vulnerability of forensic psychological evaluation of the suspect's mental health to the context effect (i.e. the influencing of the expert opinion by irrelevant information) was tested. Master students in forensic psychology were asked to interpret test scores of a suspect in a fictitious double murder case. Some participants received a version of the case in which the description of the murders was neutral. Others received a more explicit version. Whereas the explicitness should not affect the forensic psychological evaluation, it was found that participants in the latter condition seemed more concerned about the suspect's mental health than those in the former. It is concluded that training programmes in forensic psychological assessment should devote attention to bias.

Understanding Willingness to Participate in HIV Biomedical Research: A Mixed Methods Investigation.

Biomedical research often enrolls people living with HIV (PLWH) receiving effective treatment to complete invasive procedures. This mixed methods study characterized determinants of willingness to undergo specific biomedical procedures among PLWH. In 2017, 61 participants (77% Black) from Miami completed a quantitative assessment examining willingness to participate. A subset of 19 participants completed an in-depth qualitative interview. Across all procedures, there was greater willingness to participate if asked by a primary care provider and if experimental results were shared. However, half of participants reported that they would experience undue influence (i.e., excessive persuasion) to participate from their primary care provider. In thematic analyses, altruism and personal benefit were identified as facilitators while medication changes, confidentiality, and perceived stigma were identified as barriers to participation in HIV biomedical research. Addressing participants' expectations and mitigating potential undue influence from primary care providers could optimize the ethical conduct of HIV biomedical studies.

Toolkit for detecting misused epidemiological methods.

BACKGROUND: Critical knowledge of what we know about health and disease, risk factors, causation, prevention, and treatment, derives from epidemiology. Unfortunately, its methods and language can be misused and improperly applied. A repertoire of methods, techniques, arguments, and tactics are used by some people to manipulate science, usually in the service of powerful interests, and particularly those with a financial stake related to toxic agents. Such interests work to foment uncertainty, cast doubt, and mislead decision makers by seeding confusion about cause-and-effect relating to population health. We have compiled a toolkit of the methods used by those whose interests are not aligned with the public health sciences. Professional epidemiologists, as well as those who rely on their work, will thereby be more readily equipped to detect bias and flaws resulting from financial conflict-of-interest, improper study design, data collection, analysis, or interpretation, bringing greater clarity-not only to the advancement of knowledge, but, more immediately, to policy debates. METHODS: The summary of techniques used to manipulate epidemiological findings, compiled as part of the 2020 Position Statement of the International Network for Epidemiology in Policy (INEP) entitled Conflict-of-Interest and Disclosure in Epidemiology, has been expanded and further elucidated in this commentary. RESULTS: Some level of uncertainty is inherent in science. However, corrupted and incomplete literature contributes to confuse, foment further uncertainty, and cast doubt about the evidence under consideration. Confusion delays scientific advancement and leads to the inability of policymakers to make changes that, if enacted, would-supported by the body of valid evidence-protect, maintain, and improve public health. An accessible toolkit is provided that brings attention to the misuse of the methods of epidemiology. Its usefulness is as a compendium of what those trained in epidemiology, as well as those reviewing epidemiological studies, should identify methodologically when assessing the transparency and validity of any epidemiological inquiry, evaluation, or argument. The problems resulting from financial conflicting interests and the misuse of scientific methods, in conjunction with the strategies that can be used to safeguard public health against them, apply not only to epidemiologists, but also to other public health professionals. CONCLUSIONS: This novel toolkit is for use in protecting the public. It is provided to assist public health professionals as gatekeepers of their respective specialty and subspecialty disciplines whose mission includes protecting, maintaining, and improving the public's health. It is intended to serve our roles as educators, reviewers, and researchers.

Paying Participants in COVID-19 Trials.

Trials are in development and underway to examine potential interventions for treatment and prophylaxis of coronavirus disease 2019 (COVID-19). How should we think about offering payment to participants in these trials? Payment for research participation is ethically contentious even under ideal circumstances. Here, we review 3 functions of research payment-reimbursement, compensation, and incentive-and identify heightened and novel ethical concerns in the context of a global pandemic. We argue that COVID-19 trial participants should usually be offered reimbursement for research-related expenses, and compensation for their time and effort, as for other types of research under usual circumstances. Given increased risk of undue influence against pandemic background conditions, incentive payment should be avoided unless essential to recruitment and retention in important trials whose social value outweighs this risk. Where essential, however, incentives can be ethically permissible, so long as reasonable efforts are made to minimize the possibility of undue influence.

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.

Bioethics and the use of social media for medical crowdfunding.

BACKGROUND: Social media has globalised compassion enabling requests for donations to spread beyond geographical boundaries. The use of social media for medical crowdfunding links people with unmet healthcare needs to charitable donors. There is no doubt that fundraising campaigns using such platforms facilitates access to financial resources to the benefit of patients and their caregivers. MAIN TEXT: This paper reports on a critical review of the published literature and information from other online resources discussing medical crowdfunding and the related ethical questions. The review highlighted the benefits of crowdfunding as well as the under-exploration of the risk of having patients' desires and human rights undermined during online fundraising campaigns. Majority of these campaigns get initiated on behalf of the patients, especially the very sick and dependant. The ethical questions raised relate to the voluntariness of informed consent and the possibility of patients being used as a means to an end. Vulnerability of patients may expose them to coercion, undue influence, manipulation, and violation of their human rights. The success of these campaigns is influenced by the digital skills, pre-existing social networks and, the emotional potency. Healthcare is a public good, and online market forces should not determine access to essential health services. The benefits of crowdfunding cannot be subverted, but it can perpetuate unintended injustices, especially those arising from socio-economic factors. CONCLUSIONS: Policymakers ought to monitor the utilisation of crowdfunding sites to identify policy failures and unmet essential health care needs responsible for driving individuals to use these platforms. The upholding of human rights and the fundamental respect of the individual's wishes is a moral imperative. The need for an ethics framework to guide different stakeholders during medical crowdfunding needs further examination.

Making the case for completion bonuses in clinical trials.

Attrition is a serious problem in many clinical trials. The practice of offering completion bonuses-financial incentives offered to participants on the condition that they remain in a trial until they reach a prespecified study endpoint-is one means of addressing attrition. Despite their practical appeal, however, completion bonuses remain ethically controversial due to concern that they will coerce or unduly influence participants to not exercise their right to withdraw from a trial. Although this interaction with the right to withdraw does render completion bonuses conceptually distinct from other incentive payments offered to research participants, we argue here that completion bonuses are never coercive and, in the context of effective institutional review board oversight, are unlikely to be unduly influential. Nonetheless, because completion bonuses may in some cases still encourage unreasonable continued participation in a study, additional safeguards are appropriate. Rejecting completion bonuses entirely is, however, unnecessary and would problematically fail to address the significant ethical problems associated with participant attrition.

Biggest decision of them all - death and assisted dying: capacity assessments and undue influence screening.

Arguably, deciding the timing and manner of one's death is the biggest decision of all. With the Victorian Voluntary Assisted Dying Act 2017 commencing in 2019, assessing capacity to choose Voluntary Assisted Dying (VAD) becomes a critical issue for clinicians in Victoria, and elsewhere with on-going efforts to change the law across Australia and in New Zealand. We consider how capacity assessment and undue influence screening can be approached for VAD, the role and risks of supported decision-making, and argue for the importance of training to ensure health care professionals are educated about their role.

Compensation of subjects for participation in biomedical research in resource - limited settings: a discussion of practices in Malawi.

BACKGROUND: Compensating participants of biomedical research is a common practice. However, its proximity with ethical concerns of coercion, undue influence, and exploitation, demand that participant compensation be regulated. The objective of this paper is to discuss the current regulations for compensation of research participants in Malawi and how they can be improved in relation to ethical concerns of coercion, undue influence, and exploitation. MAIN TEXT: In Malawi, national regulations recommend that research subjects be compensated with a stipend of US$10 per study visit. However, no guidance is provided on how this figure was determined and how it should be implemented. While necessary to prevent exploitation, the stipend may expose the very poor to undue influence. The stipend may also raise the cost of doing research disadvantaging local researchers and may have implications on studies where income stipend is the intervention under investigation. We recommend that development and implementation of guidelines of this importance involve interested parties such as the research community and patient groups. CONCLUSION: Compensating human research subjects is important but can also act as a barrier to voluntary participation and good research efforts. Deliberate measures need to be put in place to ensure fair compensation of research participants, avoid their exploitation and level the field for locally funded research.

The Relationship between Autonomy and Adult Mental Capacity in the Law of England and Wales.

Judges in England and Wales tell three apparently contradictory stories about the relationship between autonomy and mental capacity. Sometimes, capacity is autonomy's gatekeeper: those with capacity are autonomous, but those without capacity are not. Sometimes, capacity is necessary for autonomy but insufficient; for voluntariness, freedom from undue external influences, is also required. Finally, sometimes autonomy survives incapacity, and a person without capacity is nevertheless treated as autonomous. These three accounts coexist, so no story of evolution, in which one account comes to replace another, can be told. Similarly, no story of judicial factions is plausible, for judges switch account to suit the facts of a particular case. This article gives examples of all three accounts, traces their recent history, and shows how each serves one or two characteristic purposes. It then shows how they can be combined into a coherent descriptive account of the relationship between autonomy and mental capacity in domestic law.

Commentary on Undue Influence Provisions under Oregon Death with Dignity Act and California's End of Life Option Act.

This article considers the requirements to assess for elements of undue influence under the Oregon Death with Dignity Act (2013) and California's recently assented to End of Life Option Act (2015). Acting voluntarily, that is free from undue influence, is critical to the operation of these statutes. Indeed, assisted dying largely draws its legitimacy from the requirement that voluntariness is well protected. However, this article argues that the requirements under these statutes fall short of adequately protecting a voluntary decision. This article discusses the provisions concerning voluntariness and undue influence under these two statutes, highlighting ostensible limitations therein. Basic recommendations for improvement are proffered. This article concludes by arguing that Australia should not draw inspiration from these statutory provisions because they fail to protect freedom of choice in a meaningful way.

Developing an undue influence screening tool for Adult Protective Services.

The study purpose was to develop and pilot an undue influence screening tool for California's Adult Protective Services (APS) personnel based on the definition of undue influence enacted into California law January 1, 2014. Methods included four focus groups with APS providers (n = 33), piloting the preliminary tool by APS personnel (n = 15), and interviews with four elder abuse experts and two APS administrators. Social service literature-including existing undue influence models-was reviewed, as were existing screening and assessment tools. Using the information from these various sources, the California Undue Influence Screening Tool (CUIST) was developed. It can be applied to APS cases and potentially adapted for use by other professionals and for use in other states. Implementation of the tool into APS practice, policy, procedures, and training of personnel will depend on the initiative of APS management. Future work will need to address the reliability and validity of CUIST.

A preliminary evaluation of the validity of binge-eating disorder defining features in a community-based sample.

OBJECTIVE: Little empirical attention has been paid to the DSM-5 definition of binge-eating disorder (BED), particularly to the associated features of binge episodes. The present study sought to determine how the associated features and undue influence of weight/shape on self-evaluation contribute to evidence of a clinically significant eating disorder. METHOD: Secondary analyses were conducted on data (N = 80; 76.3% women, 76.3% Caucasian, ages 18-43) collected through an epidemiological study of eating patterns. Descriptive statistics were used to report the sample prevalence of the features, independently and in combination. Correlations and alpha reliability were employed to examine relationships among associated features, distress regarding bingeing, and clinical diagnosis. Regression models and receiver-operating characteristic (ROC) curves were used to determine the utility of the features for explaining variance in distress. RESULTS: Internal consistency reliability for indicators was low, and several features demonstrated low or nonsignificant associations with distress and diagnosis. Feeling disgusted/depressed/guilty was the only unique predictor of distress (p = 0.001). For the ROC curves, three features was the best threshold for predicting distress. DISCUSSION: Results support the need to refine the features to ensure better detection of clinically significant eating pathology for research inclusion and treatment of the illness. © 2015 Wiley Periodicals, Inc. (Int J Eat Disord 2016; 49:524-528).

Kamakahi vs ASRM and the future of compensation for human eggs.

A recent lawsuit that alleges that the American Society for Reproductive Medicine (ASRM) engages in price-fixing by capping the amount of compensation paid for human oocytes has several critical ethical and policy implications that have received relatively little attention. ASRM has argued that ceilings on donor compensation prevent enticement, exploitation, and oocyte commodification. Critics counter that low donor compensation decreases supply, because fewer women are then interested in donating, which then increases prices for the service that physicians, not donors, accrue, and that ethical goals can be better achieved through enhanced informed consent, hiring egg donor advocates, and better counseling and screening. Yet, if compensation caps are removed, questions emerge concerning what the oocyte market would then look like. Informed consent is an imperfect process. Beyond the legal and economic questions of whether ASRM violates the Sherman Anti-trust Act also lie crucial questions of whether human eggs should be viewed as other products. We argue that human eggs differ from other factory-produced goods and should command moral respect. Although eggs (or embryos) are not equivalent to human beings, they deserve special consideration, because of their potential for human life, and thus have a different moral status. ASRM's current guidelines appear to address, even if imperfectly, ethical challenges that are related to egg procurement for infertility treatment. Given public concerns about oocyte commodification and ASRM's wariness of government regulations, existing guidelines may represent a compromise by aiding patients who seek eggs, while simultaneously trying to avoid undue influence, exploitation, and eugenics. Although the ultimate outcome of this lawsuit remains unclear, policy makers, providers, lawyers, judges, and others should attend seriously to these issues. Alternatives to current ASRM guidelines may be possible (eg, raising the current caps to, say, $12,000 or $15,000, potentially increasing donation, while still avoiding certain ethical difficulties) and warrant close consideration. These complex conflicting ethical issues deserve more attention than they have received because they affect key aspects of clinical practice and the lives of countless patients.

A Fine Balance: Reconsidering Patient Autonomy in Light of the UN Convention on the Rights of Persons with Disabilities.

The Convention on the Rights of Persons with Disabilities is increasingly seen as driving a paradigm shift in mental health law, particularly in relation to the understanding that it requires a shift from substituted to supported decisions. This article identifies two competing moral commitments implied by this shift, both of which appeal to the notion of autonomy. It is argued that because of these commitments the Convention is in tension with more general calls in the medical ethics literature for preserving patient autonomy through support. The competing commitments within the Convention also present a particular challenge in putting the support it requires into practice. A discursive control account of freedom is used to develop some practical guidelines for navigating this new moral territory.

'Evaluation of testamentary capacity: A systematic review'.

OBJECTIVE: To systematically review the literature on methods for the standardized and objective assessment of Testamentary Capacity (TC), to identify the best evidence-based and clinically pragmatic method to assess TC. Doubts concerning TC can have far-reaching legal and financial implications. METHOD: A systematic search of the literature was conducted, using PRISMA guidelines, to identify studies which describe methods or tools for the assessment of TC. RESULTS: The Testamentary Definition Scale (TDS); the Testamentary Capacity Assessment Tool (TCAT); and the Testamentary Capacity Instrument (TCI) all have good psychometric properties, but TDS only partially assesses TC, and the TCI is designed for research rather than day-to-day clinical practice. CONCLUSION: The TCAT could usefully supplement the clinical assessment of TC, coupled with a standardized examination of cognition. There is room to develop an all-encompassing TC assessment tool. Currently, the clinical judgement of a medical professional, taking account of the medical, legal, ethical issues informing a capacity or competency decision, remains the gold standard for assessing TC.

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.

Misconceptions about coercion and undue influence: reflections on the views of IRB members.

Payment to recruit research subjects is a common practice but raises ethical concerns relating to the potential for coercion or undue influence. We conducted the first national study of IRB members and human subjects protection professionals to explore attitudes as to whether and why payment of research participants constitutes coercion or undue influence. Upon critical evaluation of the cogency of ethical concerns regarding payment, as reflected in our survey results, we found expansive or inconsistent views about coercion and undue influence that may interfere with valuable research. In particular, respondents appear to believe that coercion and undue influence lie on a continuum; by contrast, we argue that they are wholly distinct: whereas undue influence is a cognitive distortion relating to assessment of risks and benefits, coercion is a threat of harm. Because payment is an offer, rather than a threat, payment is never coercive.