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McWilliams A, Ariyo K, David AS, Owen GS. Mental capacity assessment in the multi-professional real world: a qualitative study of six areas of uncertainty. Wellcome Open Res 2024; 9:221. [PMID: 38911900 PMCID: PMC11190650 DOI: 10.12688/wellcomeopenres.20952.1] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Accepted: 03/26/2024] [Indexed: 06/25/2024] Open
Abstract
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.
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Affiliation(s)
- Andrew McWilliams
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, King's College London, London, SE5 8AF, UK
- Metacognition Group, Wellcome Centre for Human Neuroimaging, University College London, 12 Queen Square, London, WC1N 3BG, UK
- Child and Adolescent Mental Health Services, Great Ormond Street Hospital for Children NHS Foundation Trust, Great Ormond Street, London, WC1N 3JH, UK
| | - Kevin Ariyo
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, King's College London, London, SE5 8AF, UK
| | - Anthony S. David
- UCL Institute of Mental Health, Department of Psychiatry, University College London, London, W1T 7NF, UK
| | - Gareth S. Owen
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, King's College London, London, SE5 8AF, UK
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2
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Kane NB, Broderick N, Rao E, Ruck Keene A, Rao RT. Shades of grey: choice, control and capacity in alcohol-related brain damage. BJPsych Bull 2023:1-6. [PMID: 37947128 DOI: 10.1192/bjb.2023.92] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Indexed: 11/12/2023] Open
Abstract
Liaison psychiatrists have identified that conducting capacity assessments in general hospital patients with alcohol-related brain damage (ARBD) can be challenging. This educational article uses the fictitious case of a man with ARBD, alcohol dependence and significant self-neglect, focusing on assessment of his capacity to decide about moving into a care home on discharge. We provide an overview of clinical, legal and ethical literature relevant to decision-making and capacity assessment in individuals with ARBD, with the aim of guiding clinicians approaching complex capacity assessments.
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Affiliation(s)
| | | | - Emily Rao
- University of California San Diego, La Jolla, California, USA
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3
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Ruck Keene A, Cordone C. Distributed rights protection: The 2000 Hague Convention on the International Protection of Adults and the challenge of securing fundamental rights across borders. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2023; 91:101936. [PMID: 37716323 DOI: 10.1016/j.ijlp.2023.101936] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 09/06/2023] [Accepted: 09/08/2023] [Indexed: 09/18/2023]
Abstract
The 2000 Hague Convention on the International Protection of Adults ('the 2000 Convention') entered into force on 1 January 2009, is cast as a private international law convention (i.e. one providing tools to minimise procedural, debates about cross-border matters affecting individuals). However, in little-known, and even less explored fashion, it has significant implications for the exercise of both administrative and legal powers by States over those in their territory in zones that are conventionally held close to the metaphorical heart of State power, for instance those experiencing mental ill health, or with impaired decision-making capacity. Even less explored are the consequences for the individuals at the centre of such situations, in particular as regards the protection of their fundamental rights. As we examine in this paper, focusing on both problems of abduction and of cross-border placement into circumstances of deprivation of liberty, such protection has to be distributed between jurisdictions; we suggest that this is a phenomenon which requires to be addressed in a transparent fashion, so that all concerned can be clear as to the implications for its effectiveness.
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Affiliation(s)
- Alex Ruck Keene
- Barrister, 39 Essex Chambers, King's College London, Dickson Poon School of Law, UK.
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4
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Melo BF, Santos KOB, Fernandes RDCP, de Lima VMC, Stock S. Mental disorders in judicial workers: analysis of sickness absence in a cohort study. Rev Saude Publica 2023; 57:72. [PMID: 37878858 PMCID: PMC10547382 DOI: 10.11606/s1518-8787.2023057004737] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Journal Information] [Subscribe] [Scholar Register] [Received: 03/28/2022] [Accepted: 10/18/2022] [Indexed: 10/27/2023] Open
Abstract
OBJECTIVE To analyze risk factors for sickness absence due to mental disorders among judicial workers in Bahia, Brazil. METHODS Retrospective cohort with follow-up from 2011 to 2016 with 2,660 workers of a judicial sector in Bahia, Brazil. The main outcome measures were survival curves estimated for the independent variables using the Kaplan-Meier product limit estimator and risk factors for the first episode of sickness absence calculated based on the Cox regression model. RESULTS The survival estimate of the population of this study for the event was 0.90 and from the Cox model the risk factors for the first episode of sickness absence due to mental disorders were: female (HR = 1.81), occupation of magistrate (HR = 1.80), and age over 30 years old (HR = 1.84). In addition, the risk for new cases of sickness absence among women reached 4.0 times the risk for men, in 2015. The estimated relative risks of sickness absence and the observed survival reduction behavior over time add information to the literature on sociodemographic and occupational factors associated with sickness absence due to mental disorders in the public sector. CONCLUSION These results highlight the need for further research to more precisely identify vulnerable groups at risk of preventable mental health-related sickness absence in the workplace, better identify the workplace organizational factors that contribute to these disorders as well as studies on the effectiveness of workplace interventions to improve mental health among judicial and other public sectors workers.
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Affiliation(s)
- Bruna Ferreira Melo
- Universidade Federal da BahiaFaculdade de Medicina da BahiaSalvadorBABrasil Universidade Federal da Bahia. Faculdade de Medicina da Bahia. Salvador, BA, Brasil
| | - Kionna Oliveira Bernardes Santos
- Universidade Federal da BahiaFaculdade de Medicina da BahiaSalvadorBABrasil Universidade Federal da Bahia. Faculdade de Medicina da Bahia. Salvador, BA, Brasil
| | - Rita de Cássia Pereira Fernandes
- Universidade Federal da BahiaFaculdade de Medicina da BahiaSalvadorBABrasil Universidade Federal da Bahia. Faculdade de Medicina da Bahia. Salvador, BA, Brasil
| | - Verônica Maria Cadena de Lima
- Universidade Federal da BahiaFaculdade de Medicina da BahiaSalvadorBABrasil Universidade Federal da Bahia. Faculdade de Medicina da Bahia. Salvador, BA, Brasil
| | - Susan Stock
- University of MontrealDepartment of Social & Preventive MedicineMontréalQCCanada University of Montreal. Department of Social & Preventive Medicine. Montréal, QC, Canada
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5
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Beale C, Lee-Davey J, Lee T, Ruck Keene A. Mental capacity in practice part 1: how do we really assess capacity? BJPSYCH ADVANCES 2023. [DOI: 10.1192/bja.2022.81] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Indexed: 03/06/2023]
Abstract
SUMMARY
Significant problems exist in understanding and implementing the Mental Capacity Act 2005 (MCA) despite it having been in place in England and Wales for more than 15 years. Although many guidelines exist on the assessment of capacity, it is difficult to apply such guidance in practice, given the complexity of actual situations. We may know the stages of the test for capacity, but do we really understand what they mean and how to assess them? In this, the first of two articles examining the MCA and challenges in its application, we add to existing legal guidance to explore capacity assessment in detail using a clinical scenario, and use case law and case studies to illustrate the subtleties and difficulties that may arise.
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6
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Ruck Keene Kc Hon A, Enefer A. What place has 'capacity' in the criminal law relating to sex post JB? INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2022; 85:101843. [PMID: 36379182 PMCID: PMC7614960 DOI: 10.1016/j.ijlp.2022.101843] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.5] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Received: 09/29/2022] [Revised: 11/01/2022] [Accepted: 11/01/2022] [Indexed: 06/16/2023]
Abstract
The term 'capacity' has come to assume a variety of meanings in the law of England and Wales, and the failure of statutes and judges to specify its meaning and application across the civil and criminal law leads to problems. Nowhere is this perhaps clearer than in the law relating to sexual capacity. This paper begins with an overview of two streams of law on sexual capacity in the civil and criminal law. The first stream traces through the criminal law provisions of the Sexual Offences Act 2003, the work by the Law Commission which led to its enactment, and the ways in which its provisions have been applied by the courts in practice; and the second examines the Mental Capacity Act 2005 ('MCA 2005') and its parallel application by the civil courts. We illustrate how the case of A Local Authority v JB [2021] UKSC 52 brought these problems to the fore, as the Supreme Court was at last confronted with the differences between the definition and use of the term 'capacity' by the civil and criminal law on sexual capacity. We suggest that the decision made by the Supreme Court in JB has left open terrain which ought to be used to reframe, or perhaps even replace, the concept of 'capacity' within the criminal law on sexual capacity.1.
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Affiliation(s)
- Alex Ruck Keene Kc Hon
- Barrister, 39 Essex Chambers, London, UK; Visiting Professor, King's College London, Dickson Poon School of Law, UK.
| | - Allegra Enefer
- Student at City, University of London, UK; Research Assistant at the London School of Economics and Political Science, UK
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7
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Aspinwall‐Roberts E, Fleming V, Khatri R, Jones P. 'They don't want them to have capacity': Multi-agency operationalisation of the Mental Capacity Act 2005 in England with adults who self-neglect. HEALTH & SOCIAL CARE IN THE COMMUNITY 2022; 30:e4395-e4404. [PMID: 35607758 PMCID: PMC10083994 DOI: 10.1111/hsc.13839] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Figures] [Subscribe] [Scholar Register] [Received: 09/12/2021] [Revised: 03/21/2022] [Accepted: 04/22/2022] [Indexed: 06/15/2023]
Abstract
The number of adults who self-neglect and thus fall under the aegis of local authority adult safeguarding procedures in England has increased substantially since the introduction of the Care Act 2014. The requirement for collaborative working between agencies dealing with these adults in a safeguarding context is explicit in government policy and legislation. Decisions made by the multiplicity of agencies that may work with people who self-neglect are largely guided by the Mental Capacity Act 2005 (MCA). The overall objective of this research was to develop a clearer understanding of how the range of agencies that might typically be involved in the life of a self-neglecting person work together. This article examines how agencies put the MCA into practice in their work with people who self-neglect, and how they understand their own and others' roles and responsibilities in so doing. This qualitative study took place in two local authorities in England from 2016 to 2017 and informed a wider action research study which was completed in 2019. Non-probability purposive sampling was used to recruit participants from the professional groups who might typically be involved with self-neglect cases. À total of 245 participants from across 17 different professional groups took part in semi-structured interviews, in a group, paired or individual format, decided by their customary working configuration. Data from the interview transcripts was analysed using thematic analysis. Three key themes in relation to how participants understood the MCA and multi-agency working emerged from the analysis of this data set. These were; a lack of understanding of the MCA by participants and other agencies; a reluctance to engage with MCA assessments; and a perception of manipulation of the MCA by other professionals. This study underlines the importance of the informed application of the MCA in working with people who self-neglect, and an urgent need to consider how this could be enhanced if the service user is not to experience intrusive interventions resulting from professional misinterpretation.
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Affiliation(s)
- Elaine Aspinwall‐Roberts
- Faculty of Health, School of Nursing and Allied HealthLiverpool John Moores UniversityLiverpoolUK
| | - Valerie Fleming
- Faculty of Health, School of Nursing and Allied HealthLiverpool John Moores UniversityLiverpoolUK
| | - Rose Khatri
- Faculty of Health, School of Nursing and Allied HealthLiverpool John Moores UniversityLiverpoolUK
| | - Paul A. Jones
- Faculty of Health, School of Nursing and Allied HealthLiverpool John Moores UniversityLiverpoolUK
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8
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Kim SYH, Kane NB, Ruck Keene A, Owen GS. Broad concepts and messy realities: optimising the application of mental capacity criteria. JOURNAL OF MEDICAL ETHICS 2022; 48:838-844. [PMID: 34341150 PMCID: PMC9626907 DOI: 10.1136/medethics-2021-107571] [Citation(s) in RCA: 2] [Impact Index Per Article: 1.0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Received: 05/06/2021] [Accepted: 06/25/2021] [Indexed: 06/13/2023]
Abstract
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.
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Affiliation(s)
- Scott Y H Kim
- Department of Bioethics, Clinical Center, National Institutes of Health, Bethesda, Maryland, USA
| | - Nuala B Kane
- Department of Psychological Medicine, IoPPN, London, UK
| | - Alexander Ruck Keene
- Dickson Poon School of Law, King's College London, London, UK
- 39 Essex Chambers, London, UK
| | - Gareth S Owen
- Department of Psychological Medicine, IoPPN, London, UK
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9
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Ariyo K, Ruck Keene A, David AS, Owen GS. Insight and equality: A systematic review and meta-analysis of socio-demographic associations. Int J Soc Psychiatry 2022; 68:1494-1506. [PMID: 34348507 PMCID: PMC9549177 DOI: 10.1177/00207640211036174] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Indexed: 11/16/2022]
Abstract
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.
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Affiliation(s)
- Kevin Ariyo
- Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, UK
| | - Alex Ruck Keene
- Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, UK.,Dickson Poon School of Law, King's College London, UK
| | - Anthony S David
- Division of Psychiatry, UCL Institute of Mental Health, University College London, UK
| | - Gareth S Owen
- Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, UK
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10
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Owen G, Kane N, Keene AR. ‘Clear explanation’ in mental capacity assessment. BJPSYCH ADVANCES 2021. [DOI: 10.1192/bja.2021.71] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Indexed: 11/23/2022]
Abstract
SUMMARY
We comment on Martin Curtice's article on expert and professional reports for the Court of Protection, which highlights the importance of ‘clear explanation’ in mental capacity assessment. We put the Court in a broader context of the Mental Capacity Act and summarise recent research and education that aims to help give clinicians working in England and Wales capacity assessment guidance that is clinically grounded, multi-perspectival and legally defensible.
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11
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Marshall P, Jiménez G. Medicalisation and participation in legal capacity determinations in Chile. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2021; 78:101735. [PMID: 34438194 DOI: 10.1016/j.ijlp.2021.101735] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 03/23/2021] [Revised: 08/11/2021] [Accepted: 08/12/2021] [Indexed: 06/13/2023]
Abstract
This paper provides an examination of the process used by ordinary courts in Chile when making legal capacity determinations. It provides an up-to-date account of various aspects of law and procedure related to legal capacity in this jurisdiction. Also, by drawing on semi-structured interviews with judges, this paper examines judicial understandings of legal capacity decision-making focusing on problems related to the medicalisation of mental disability and the participation of persons with disabilities in legal capacity procedures.
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Affiliation(s)
- Pablo Marshall
- Universidad Austral de Chile, Chile, Campus Isla Teja s/n, Valdivia, Chile.
| | - Guillermo Jiménez
- Universidad Adolfo Ibáñez, Chile, Padre Hurtado 750, Viña del Mar, Chile.
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12
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Moses‐Payne ME, Habicht J, Bowler A, Steinbeis N, Hauser TU. I know better! Emerging metacognition allows adolescents to ignore false advice. Dev Sci 2021; 24:e13101. [PMID: 33686737 PMCID: PMC8612133 DOI: 10.1111/desc.13101] [Citation(s) in RCA: 6] [Impact Index Per Article: 2.0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 06/18/2020] [Revised: 12/21/2020] [Accepted: 01/29/2021] [Indexed: 12/03/2022]
Abstract
Adolescents aspire for independence. Successful independence means knowing when to rely on one's own knowledge and when to listen to others. A critical prerequisite thus is a well-developed metacognitive ability to accurately assess the quality of one's own knowledge. Little is known about whether the strive to become an independent decision maker in adolescence is underpinned by the necessary metacognitive skills. Here, we demonstrate that metacognition matures from childhood to adolescence (N = 107) and that this process coincides with greater independent decision-making. We show that adolescents, in contrast to children, take on others' advice less often, but only when the advice is misleading. Finally, we demonstrate that adolescents' reduced reliance on others' advice is explained by their increased metacognitive skills, suggesting that a developing ability to introspect may support independent decision-making in adolescence.
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Affiliation(s)
| | - Johanna Habicht
- Max Planck UCL Centre for Computational Psychiatry and Ageing ResearchLondonUK
- Wellcome Centre for Human NeuroimagingUniversity College LondonLondonUK
| | - Aislinn Bowler
- Max Planck UCL Centre for Computational Psychiatry and Ageing ResearchLondonUK
- Wellcome Centre for Human NeuroimagingUniversity College LondonLondonUK
| | - Nikolaus Steinbeis
- Division of Psychology and Language SciencesUniversity College LondonLondonUK
| | - Tobias U. Hauser
- Max Planck UCL Centre for Computational Psychiatry and Ageing ResearchLondonUK
- Wellcome Centre for Human NeuroimagingUniversity College LondonLondonUK
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Abstract
SUMMARY
The Court of Protection has the legal jurisdiction to make decisions about people who lack capacity to make decisions themselves (in England and Wales). When hearing cases, evidence can be provided to the court by expert witnesses and professionals. The Court of Protection Rules 2017 inform the practice and procedure within the Court of Protection. This article reviews the judgment from a Court of Protection case that analyses the proper role of the expert witness in the court. In doing so the article provides guidance to authors of expert witness reports and reports under section 49 of the Mental Capacity Act 2005 submitted as evidence to the court.
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Ariyo K, McWilliams A, David AS, Owen GS. Experiences of assessing mental capacity in England and Wales: A large-scale survey of professionals. Wellcome Open Res 2021; 6:144. [PMID: 34235274 PMCID: PMC8246303 DOI: 10.12688/wellcomeopenres.16823.1] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Accepted: 05/28/2021] [Indexed: 11/25/2022] Open
Abstract
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.
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Affiliation(s)
- Kevin Ariyo
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, SE5 8AF, UK
| | - Andrew McWilliams
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, SE5 8AF, UK.,Metacognition Group, Wellcome Centre for Human Neuroimaging, University College London, London, WC1N 3BG, UK.,Experimental Psychology, University College London, 26 Bedford Way, London, WC1H 0AL, UK
| | - Anthony S David
- UCL Institute of Mental Health, Department of Psychiatry, University College London, London, W1T 7NF, UK
| | - Gareth S Owen
- Mental Health, Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, SE5 8AF, UK
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15
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Kane NB, Keene AR, Owen GS, Kim SYH. Applying decision-making capacity criteria in practice: A content analysis of court judgments. PLoS One 2021; 16:e0246521. [PMID: 33544766 PMCID: PMC7864395 DOI: 10.1371/journal.pone.0246521] [Citation(s) in RCA: 4] [Impact Index Per Article: 1.3] [Reference Citation Analysis] [Abstract] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Subscribe] [Scholar Register] [Received: 07/08/2020] [Accepted: 01/20/2021] [Indexed: 11/18/2022] Open
Abstract
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.
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Affiliation(s)
- Nuala B. Kane
- Department of Psychological Medicine, Mental Health, Ethics and Law Research Group, King’s College London, Institute of Psychiatry, Psychology and Neuroscience, London, United Kingdom
| | - Alex Ruck Keene
- Department of Psychological Medicine, Mental Health, Ethics and Law Research Group, King’s College London, Institute of Psychiatry, Psychology and Neuroscience, London, United Kingdom
| | - Gareth S. Owen
- Department of Psychological Medicine, Mental Health, Ethics and Law Research Group, King’s College London, Institute of Psychiatry, Psychology and Neuroscience, London, United Kingdom
| | - Scott Y. H. Kim
- Department of Bioethics, Clinical Center, National Institutes of Health, Bethesda, Maryland, United States of America
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McWilliams A, Fleming SM, David AS, Owen G. The Use of Neuroscience and Psychological Measurement in England's Court of Protection. Front Psychiatry 2020; 11:570709. [PMID: 33364988 PMCID: PMC7750429 DOI: 10.3389/fpsyt.2020.570709] [Citation(s) in RCA: 1] [Impact Index Per Article: 0.3] [Reference Citation Analysis] [Abstract] [Key Words] [Grants] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 06/08/2020] [Accepted: 09/18/2020] [Indexed: 12/02/2022] Open
Abstract
The 2005 Mental Capacity Act of England and Wales provides a description in statute law of a test determining if a person lacks "mental capacity" to take a particular decision and describes how the "best interests" of such a person should be determined. The Act established a new Court of Protection (CoP) to hear cases related to the Act and to rule on disputes over mental capacity. The court gathers a range of evidence, including reports from clinicians and experts. Human rights organisations and others have raised concerns about the nature of assessments for incapacity, including the role of brain investigations and psychometric tests. Aim: Describe use and interpretation of structured measures of psychological and brain function in CoP cases, to facilitate standardisation and improvement of practices, both in the courtroom and in non-legal settings. Method: Quantitative review of case law using all CoP judgments published until 2019. The judgments (n = 408) were read to generate a subset referring to structured testing (n = 50). These were then examined in detail to extract the nature of the measurements, circumstances of their use and features of interpretation by the court. Results: The 408 judgments contained 146 references to structured measurement of psychological or brain function, spread over 50 cases. 120/146 (82.2%) referred to "impairment of mind or brain," with this being part of assessment for incapacity in 58/146 (39.7%). Measurement referred on 25/146 (17.1%) occasions to "functional decision-making abilities." Structured measures were used most commonly by psychiatrists and psychologists. Psychological measurements comprised 66.4% of measures. Neuroimaging and electrophysiology were presented for diagnostic purposes only. A small number of behavioural measures were used for people with disorders of consciousness. When assessing incapacity, IQ and the Mini-Mental-State Examination were the commonest measures. A standardised measure of mental capacity itself was employed just once. Judges rarely integrated measurements in their capacity determinations. Conclusion: Structured testing of brain and psychological function is used in limited ways in the Court of Protection. Whilst there are challenges in creating measures of capacity, we highlight an opportunity for the neuroscience community to improve objectivity in assessment, inside and outside the courtroom.
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Affiliation(s)
- Andrew McWilliams
- Mental Health Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, United Kingdom
- Metacognition Group, Wellcome Centre for Human Neuroimaging, University College London, London, United Kingdom
- Department of Experimental Psychology, University College London, London, United Kingdom
| | - Stephen M. Fleming
- Metacognition Group, Wellcome Centre for Human Neuroimaging, University College London, London, United Kingdom
- Department of Experimental Psychology, University College London, London, United Kingdom
| | - Anthony S. David
- Institute of Mental Health, University College London, London, United Kingdom
| | - Gareth Owen
- Mental Health Ethics and Law Research Group, Department of Psychological Medicine, Institute of Psychiatry, Psychology and Neuroscience, King's College London, London, United Kingdom
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Gergel T. The 'Mental Health and Justice Project': Using interdisciplinarity to move beyond impasse in disability rights. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2020; 71:101570. [PMID: 32768115 DOI: 10.1016/j.ijlp.2020.101570] [Citation(s) in RCA: 2] [Impact Index Per Article: 0.5] [Reference Citation Analysis] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 06/11/2023]
Affiliation(s)
- Tania Gergel
- Institute of Psychiatry, Psychology and Neuroscience, King's College London, UK.
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18
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Gurbai S, Fitton E, Martin W. Insight Under Scrutiny in the Court of Protection: A Case Law Survey. Front Psychiatry 2020; 11:560329. [PMID: 33061918 PMCID: PMC7518213 DOI: 10.3389/fpsyt.2020.560329] [Citation(s) in RCA: 3] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [Abstract] [Key Words] [Track Full Text] [Download PDF] [Figures] [Journal Information] [Submit a Manuscript] [Subscribe] [Scholar Register] [Received: 05/08/2020] [Accepted: 08/13/2020] [Indexed: 11/26/2022] Open
Abstract
The concept of patient insight, of a patient's self-awareness of illness or impairment (and related issues), plays a significant role in clinical discourse and clinical practice. But what role does it play in the legal process, particularly when a patient's decision-making capacity (or "mental capacity") is in question? We report on a survey of 412 published judgments from the Court of Protection of England and Wales, published between 2007 and 2018. We found that the notion of patient insight played a role in 53 cases (13% of the total). We use a variety of techniques to provide a systematic profile of these "insight cases." We provide a demographic profile of the patients whose insight is discussed (focusing on gender, age and diagnosis) and a professional profile of the expert witnesses who raise the issue of insight. We then deploy the technique of "logical geography" to map the meaning of the term insight and the inferential patterns in which reports of patient insight are embedded. We point out that the published insight cases never explicitly define "insight," and that they include no reference to structured instruments or scales for the assessment of insight. We show that the concept of insight, as used in the Court of Protection, is not synonymous with the concept of agreement with a diagnosis of illness; this is at most one of a range of meanings that the concept carries. We show that, despite the fact that the presence or absence of insight is not itself a legal criterion for mental capacity, insightlessness does play a role, and sometimes a decisive role, in shaping findings as regards the presence or absence of mental capacity. Finally, we assess the extent to which expert testimony in the insight cases conforms to the insight-related recommendation of the recent NICE Guideline on Decision-Making and Mental Capacity.
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Affiliation(s)
- Sándor Gurbai
- The Essex Autonomy Project, School of Philosophy and Art History, University of Essex, Colchester, United Kingdom.,Human Rights Centre, University of Essex, Colchester, United Kingdom.,Faculty of Special Needs Education, Institute for Disability and Social Participation, ELTE Eötvös Loránd University, Budapest, Hungary
| | - Emily Fitton
- The Essex Autonomy Project, School of Philosophy and Art History, University of Essex, Colchester, United Kingdom
| | - Wayne Martin
- The Essex Autonomy Project, School of Philosophy and Art History, University of Essex, Colchester, United Kingdom.,Human Rights Centre, University of Essex, Colchester, United Kingdom
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19
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Pritchard-Jones L. Unspoken and unthinkable: The older disabled body in judicial discourse. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2020; 68:101525. [PMID: 32033696 DOI: 10.1016/j.ijlp.2019.101525] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 07/10/2019] [Revised: 11/18/2019] [Accepted: 11/22/2019] [Indexed: 06/10/2023]
Abstract
While much has been said about gendered bodies in legal discourse, as yet relatively little has been written about older bodies. This is surprising given the fact older people are statistically far more likely to be the subjects of certain areas of law which constrain and regulate bodily autonomy, such as mental health and capacity law. This paper uses discourse analysis to understand the way in which older disabled bodies appear in judicial discourse. It is argued that these bodies are often understood as abject, which in turn is used to legitimize certain problematic legal interventions.
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Weston J. Managing mental incapacity in the 20th century: A history of the Court of Protection of England & Wales. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2020; 68:101524. [PMID: 32033695 PMCID: PMC7026664 DOI: 10.1016/j.ijlp.2019.101524] [Citation(s) in RCA: 0] [Impact Index Per Article: 0] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Figures] [Subscribe] [Scholar Register] [Received: 09/10/2019] [Revised: 11/08/2019] [Accepted: 11/09/2019] [Indexed: 06/10/2023]
Abstract
This article explores the history of the Court of Protection of England & Wales (CoP) over the twentieth century. The CoP, which is responsible for making financial and welfare decisions on behalf of those deemed incapable of doing so themselves, presently faces a rapidly growing caseload, and considerable scrutiny and critique. Such close attention to its work may be new, but many of the issues it faces have deep roots. Using practitioners' texts, judgements, and the archives of the CoP and the Lord Chancellor's Office, I review the evolution of the CoP in terms of its structure and caseload, its decisions regarding incapacity, its efforts to manage the affairs of those found incapable, and its long-term survival. This reveals the origins of many of the issues it faces today, the different anxieties and approaches that have animated its work in the past, the ways in which approaches to incapacity have changed, and the value of a historical perspective.
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Affiliation(s)
- Janet Weston
- Centre for History in Public Health, London School of Hygiene and Tropical Medicine, 15 -17 Tavistock Place, London WC1H 9SH, UK.
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21
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van der Plas E, David AS, Fleming SM. Advice-taking as a bridge between decision neuroscience and mental capacity. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2019; 67:101504. [PMID: 31785723 PMCID: PMC7661837 DOI: 10.1016/j.ijlp.2019.101504] [Citation(s) in RCA: 4] [Impact Index Per Article: 0.8] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Download PDF] [Figures] [Subscribe] [Scholar Register] [Received: 06/12/2019] [Revised: 09/09/2019] [Accepted: 09/10/2019] [Indexed: 06/10/2023]
Abstract
A person's capacity to process advice is an important aspect of decision making in the real world. For example, in decisions about treatment, the way patients respond to the advice of family, friends and medical professionals may be used (intentionally or otherwise) as a marker of the "use or weigh" requirement of decision-making capacity. Here we explore neuroscientific research on decision-making to identify features of advice-taking that help conceptualize this requirement. We focus on studies of the neural and computational basis of decision-making in laboratory settings. These studies originally investigated simple perceptual decisions about ambiguous stimuli, but have more recently been extended to more complex "value-based" decisions involving the comparison of subjective preferences. Value-based decisions are a useful model system for capacity-related decision-making as they do not have an objectively 'correct' answer and are instead based on subjective preferences. In this context, advice-taking can be seen as a process in which new evidence for one or other option is integrated, leading to altered behaviour or choices. We use this framework to distinguish between different types of advice-taking: private compliance consists of updating one's privately held beliefs based on new evidence, whereas in the case of public compliance, people change their behaviour at a surface level without shifting their privately-held beliefs. Importantly, both types of advice-taking may lead to similar outcomes but rely on different decision processes. We suggest that understanding how multiple mechanisms drive advice-taking holds promise for targeting decision-making support and improving our understanding of the use and weigh requirement in cases of contested capacity.
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Affiliation(s)
- Elisa van der Plas
- Wellcome Centre for Human Neuroimaging, University College London, London WC1N 3BG, UK.
| | - Anthony S David
- Institute of Mental Health, University College London, London W1T 7NF, UK
| | - Stephen M Fleming
- Wellcome Centre for Human Neuroimaging, University College London, London WC1N 3BG, UK; Max Planck University College London, Centre for Computational Psychiatry and Ageing Research, London WC1B 5EH, UK.
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22
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Wade DT. Determining whether someone has mental capacity to make a decision: clinical guidance based on a review of the evidence. Clin Rehabil 2019; 33:1561-1570. [DOI: 10.1177/0269215519853013] [Citation(s) in RCA: 10] [Impact Index Per Article: 2.0] [Reference Citation Analysis] [Abstract] [Track Full Text] [Journal Information] [Subscribe] [Scholar Register] [Indexed: 12/27/2022]
Abstract
Valid consent to healthcare treatments depends upon a person having the capacity to give it. The Mental Health Act not only requires a presumption of capacity but also expects clinicians to take reasonable steps to establish whether the patient lacks capacity. The facts are that (1) lack of capacity is common among hospital inpatients and people in the community needing care, but is often not recognized. (2) Capacity must not be judged on the basis of the decision made: an unwise decision is not evidence of a lack of capacity, and a decision expected by the clinician is not evidence of capacity. Capacity is decision-specific and must be considered critically without preconceptions. There is no valid other test. (3) Clinically people will fall into four groups: (a) obviously lack capacity and will not recover it, (b) obviously lack capacity but will recover soon, (c) obviously have capacity, (d) capacity is in doubt and major healthcare decision needed. Only the last group need more detailed attention. (4) Capacity is (a) relative to the complexity of the information; (b) on a spectrum, not categorical; (c) decided using clinical judgement; and (d) subject to disagreement among assessors. The recommendations are as follows: (1) capacity should always be considered within the decision-making process, and the outcome should be documented, with sufficient information to understand the opinion given. (2) Detailed assessment should be reserved for situations when (a) a major decision is needed and (b) there is time to assess and discuss the assessment.
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Affiliation(s)
- Derick T Wade
- OxINMAHR and Movement Science Group, Faculty of Health and Life Sciences, Oxford Brookes University, Oxford, UK
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23
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Owen GS, Gergel T, Stephenson LA, Hussain O, Rifkin L, Keene AR. Advance decision-making in mental health - Suggestions for legal reform in England and Wales. INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2019; 64:162-177. [PMID: 31122626 PMCID: PMC6544565 DOI: 10.1016/j.ijlp.2019.02.002] [Citation(s) in RCA: 8] [Impact Index Per Article: 1.6] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Grants] [Track Full Text] [Subscribe] [Scholar Register] [Indexed: 06/01/2023]
Abstract
This paper argues that existing English and Welsh mental health legislation (The Mental Health Act 1983 (MHA)) should be changed to make provision for advance decision-making (ADM) within statute and makes detailed recommendations as to what should constitute this statutory provision. The recommendations seek to enable a culture change in relation to written statements made with capacity such that they are developed within mental health services and involve joint working on mental health requests as well as potential refusals. In formulating our recommendations, we consider the historical background of ADM, similarities and differences between physical and mental health, a taxonomy of ADM, the evidence base for mental health ADM, the ethics of ADM, the necessity for statutory ADM and the possibility of capacity based 'fusion' law on ADM. It is argued that the introduction of mental health ADM into the MHA will provide clarity within what has become a confusing area and will enable and promote the development and realisation of ADM as a form of self-determination. The paper originated as a report commissioned by, and submitted to, the UK Government's 2018 Independent Review of the Mental Health Act 1983.
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Affiliation(s)
- G S Owen
- Reader and lead, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF.
| | - T Gergel
- Wellcome Senior Research Fellow, Mental Health, Ethics and Law Research Group, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF
| | - L A Stephenson
- Clinical Research Associate, Mental Health, Ethics and Law Research Group, ST6 General Adult Psychiatry and Medical Psychotherapy., Institute of Psychiatry, Psychology and Neuroscience, Institute of Psychiatry, Psychology and Neuroscience, King's College London, 16 De Crespigny Park, London SE5 8AF
| | - O Hussain
- ST4 in Forensic Psychiatry, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ
| | - L Rifkin
- Consultant Psychiatrist, Lambeth Home Treatment Team, South London and Maudsley NHS Foundation Trust, Denmark Hill, London SE5 8AZ, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF
| | - A Ruck Keene
- Barrister, Wellcome Research Fellow, Visiting Lecturer at the Dickson Poon School of Law, Kings College London, Somerset House, East Wing WC2R 2LS, Visiting senior lecturer, Institute of Psychiatry, Psychology and Neuroscience, King's College London 16 De Crespigny Park, London SE5 8AF
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24
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Boyle S. How should the law determine capacity to refuse treatment for anorexia? INTERNATIONAL JOURNAL OF LAW AND PSYCHIATRY 2019; 64:250-259. [PMID: 31122636 DOI: 10.1016/j.ijlp.2019.05.001] [Citation(s) in RCA: 2] [Impact Index Per Article: 0.4] [Reference Citation Analysis] [Abstract] [Key Words] [MESH Headings] [Track Full Text] [Subscribe] [Scholar Register] [Received: 01/21/2019] [Revised: 04/30/2019] [Accepted: 05/06/2019] [Indexed: 06/09/2023]
Abstract
This article critically assesses the way a certain court has determined the capacity of a person diagnosed with anorexia to refuse medical treatment. It is shown that when making this determination, the court has adopted a process of circular reasoning, meaning anyone with the diagnosis will be found to lack capacity to refuse its treatment. This circular reasoning means that indicia of capacity that ought to be considered by the court is ignored. The result is a procedure in which the anorexic patient has no voice, and an outcome against which he or she has no effective legal recourse. This problem, it is argued, can be overcome in two ways. Firstly, courts must make sure that the 'functional' test of capacity is properly applied, meaning any finding of incapacity must rest on evidenced deficits in decision-making ability. Secondly, courts must properly engage with the subjective reasoning of the person making the treatment refusal.
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Affiliation(s)
- Sam Boyle
- School of Law, Queensland University of Technology, Brisbane, Australia.
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