Legal capacity, mental capacity and supported decision-making: Report from a panel event

Craigie, Jillian; Bach, Michael; Gurbai, Sándor; Kanter, Arlene S.; Kim, Scott Y. H.; Lewis, Oliver; Morgan, Graham

doi:10.1016/j.ijlp.2018.09.006

Cited by 61 publications

(15 citation statements)

References 12 publications

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“…We deem that this a gap that needs to be addressed, especially for those patients whose decisional capacity, although not yet deeply compromised, may benefit from the support and enhancing interventions. This view is also supported by the UN Convention on the Rights of Persons with Disabilities (CRPD; UN General Assembly, 2006) that holds that the full and equal enjoyment of legal capacity for disabled people requires a shift to supported decision-making paradigms and the abolition of substituted decision-making that allows forced treatment (Craigie, 2015;Craigie et al, 2019;Szmukler and Bach, 2015;Szmukler et al, 2014).…”

Section: Discussionmentioning

confidence: 99%

Decisional capacity to consent to treatment and research in patients affected by Mild Cognitive Impairment. A systematic review and meta-analysis

Parmigiani

Casale

Mandarelli

et al. 2021

Int. Psychogeriatr.

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Objectives: To perform a meta-analysis of clinical studies on the differences in treatment or research decision-making capacity among patients with Mild Cognitive Impairment (MCI), Alzheimer’s disease (AD), and healthy comparisons (HCs). Design: A systematic search was conducted on Medline/Pubmed, CINAHL, PsycINFO, Web of Science, and Scopus. Standardized mean differences and random-effects model were used in all cases. Setting: The United States, France, Japan, and China. Participants: Four hundred and ten patients with MCI, 149 with AD, and 368 HCs were included. Measurements: The studies we included in the analysis assessed decisional capacity to consent by the MacArthur Competence Assessment Tool for Treatment (MAcCAT-T), MacArthur Competence Assessment Tool for Clinical Research (MacCAT-CR), Capacity to Consent to Treatment Instrument (CCTI), and University of California Brief Assessment of Capacity to Consent (UBACC). Results: We identified 109 potentially eligible studies from 1672 records, and 7 papers were included in the meta-analysis. The meta-analysis showed that there was significant impairment in a decision-making capacity in MCI patients compared to the HCs group in terms of Understanding (SMD = −1.04, 95% CI: −1.31 to −0.77, P < 0.001; I2 = 52%, P = 0.07), Appreciation (SMD = −0.51, 95% CI: −0.66 to −0.36, P < 0.001; I2 = 0%, P = 0.97), and Reasoning (SMD = −0.62, 95% CI: −0.77, −0.47, P < 0.001; I2=0%, P =0.46). MCI patients scored significantly higher in Understanding (SMD = 1.50, 95% CI: 0.91, 2.09, P = 0.01, I2 = 78%, P = 0.00001) compared to patients affected by AD. Conclusions: Patients affected by MCI are at higher risk of impaired capacity to consent to treatment and research compared to HCs, despite being at lower risk compared to patients affected by AD. Clinicians and researchers need to carefully evaluate decisional capacity in MCI patients providing informed consent.

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Section: Discussionmentioning

confidence: 99%

Decisional capacity to consent to treatment and research in patients affected by Mild Cognitive Impairment. A systematic review and meta-analysis

Parmigiani

Casale

Mandarelli

et al. 2021

Int. Psychogeriatr.

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“…In these cases, permitting the patient to make a decision ‘with support’ could be perceived as a decision taken for the patient by the individual providing the support because the patient lacked capacity to make the decision. 18 …”

Section: Alternative Approaches To Novel Tp: Shared and Supported Decmentioning

confidence: 99%

“…However, SUDM has its challenges, and a fundamental concern is about patients who lack mental capacity and are unable to make decisions. In these cases, permitting the patient to make a decision ‘with support’ could be perceived as a decision taken for the patient by the individual providing the support because the patient lacked capacity to make the decision 18…”

Section: Alternative Approaches To Novel Tp: Shared and Supported Decmentioning

confidence: 99%

How should the ‘privilege’ in therapeutic privilege be conceived when considering the decision-making process for patients with borderline capacity?

et al. 2020

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Therapeutic privilege (TP) is a defence that may be available to doctors who fail to disclose to the patient relevant information when seeking informed consent for treatment if they have a reasonable belief that providing that information would likely cause the patient concerned serious physical or mental harm. In a landmark judgement, the Singapore Court of Appeal introduced a novel interpretation of TP, identifying circumstances in which it might be used with patients who did not strictly lack capacity but might be inclined to refuse recommended treatments. In this paper, we explore the conceptual and practical challenges of this novel interpretation of TP. We propose that more emphasis should be placed on forms of shared and supported decision-making that foster the autonomy of patients with compromised mental capacity while being mindful of the need to safeguard their well-being. The kind of privilege that doctors might need to invoke is one of time and supportive expertise to ensure a flexible, responsive approach calibrated to the individual patients’ needs. The provision of such service would extinguish the need for the novel TP proposed by the Singapore Court of Appeal.

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“…While there appears to be general agreement that supported decision-making should be the standard in almost all circumstances, this debate remains unresolved in situations where an individual completely lacks decision-making capacity. The CRPD Committee argues that these situations should be managed by a "best interpretation" of the person's will and preferences, while critics note that this appears to be a form of substitute judgement, with the corollary that the CRPD cannot be interpreted as completely prohibiting substitute judgement (Craigie et al, 2019). The debate is complicated by inconsistencies between the CRPD and other international instruments and UN entities (Guilloud, 2019).…”

Section: Insert Table 3 Here 2 Interpretation Of the Crpd Article 12mentioning

confidence: 99%

Measuring the impact of revised mental health legislation on human rights in Queensland, Australia

Gill

Amos

Muhsen

et al. 2020

International Journal of Law and Psychiatry

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The Convention on the Rights of Persons with Disabilities (2006) (CRPD) has been instrumental for initiating and shaping the reform of mental health legislation in many countries, including the eight Australian jurisdictions. Multiple approaches have been proposed to assess and monitor the compliance of States Parties' mental health legislation with the CRPD, and to evaluate its success in protecting and promoting the human rights of people with disabilities. This article reports an effort to index the impact of legislation on human rights by measuring changes in the prevalence of compulsory treatment orders applied to people with mental illness after the introduction of CRPD influenced mental health legislation in the Australian state of Queensland. We found that despite reforms intended to enhance patient autonomy, the prevalence of compulsory treatment orders increased after implementation of the new legislation. Possible reasons behind this unintended consequence of the legislative reform may include a lack of systematized voluntary alternatives to compulsory treatment, a paternalistic and restrictive culture in mental health services and risk aversion in clinicians and society. We recommend that the reforms in mental health policy as well as legislation need to go further in order to achieve the goals embodied in the human rights framework of the CRPD.

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Legal capacity, mental capacity and supported decision-making: Report from a panel event

Cited by 61 publications

References 12 publications

Decisional capacity to consent to treatment and research in patients affected by Mild Cognitive Impairment. A systematic review and meta-analysis

Decisional capacity to consent to treatment and research in patients affected by Mild Cognitive Impairment. A systematic review and meta-analysis

How should the ‘privilege’ in therapeutic privilege be conceived when considering the decision-making process for patients with borderline capacity?

Measuring the impact of revised mental health legislation on human rights in Queensland, Australia

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