Ensuring Ethical Dental Care: Obtaining Legal Consent for Nonverbal Adults
TDIC Risk Management Staff
Journal of the California Dental Association, 28 July 2023
Excerpt
     When it comes to dental treatment, the importance of obtaining proper, legal consent cannot be overstated. Dentists often face unique challenges in obtaining consent to treat adults who are nonverbal or unable to provide consent on their own due to cognitive impairments or advanced age.

The Dentists Insurance Company Risk Management Advice Line, which provides guidance to TDIC policyholders and dental association members, regularly receives inquiries about the appropriate procedures for obtaining consent to treat adults with special needs. The following case study illustrates the need for compassionate care and vigilance to ensure valid consent is obtained…

Struggling with unnecessary suffering-Registered nurses’ experiences of delayed decisions on treatment without consent in forensic psychiatric inpatient care
Antonsson H, Dahliavy L, Mouline H, Molin J
International Journal of Mental Health Nursing, 17 July 2023
Abstract
Chemical restraints are used in forensic psychiatric inpatient care, however with caution as it can feel like an assault against patients’ integrity. When waiting for decisions on treatment without consent, nursing staff are expected to care for patients with severe mental ill-health without the use of medical treatment, often with a feeling of already having tried all other available means. Knowledge about how registered nurses experience such situations is sparse but could contribute to the development of both teamwork and nursing approaches that could mean reduced suffering for patients. The aim of this study was to describe registered nurses’ experiences of delayed decisions on treatment without consent in forensic psychiatric inpatient care. Eleven semi-structured interviews were conducted with registered nurses working in forensic psychiatric units in Sweden. Data were analysed through qualitative content analysis. The result showed that experiences of treatment without consent were about striving to protect patients from harm, striving for collaboration during difficult circumstances and striving to do good. This was interpreted as a struggle with unnecessary suffering. For registered nurses to be able to handle such challenging situations and relieve suffering for patients, experience and master-level education in mental health nursing are highlighted. Another aspect that is highlighted is the importance of having consultants familiar with the circumstances at the unit. A method for joint reflection is suggested, to promote an open-minded work culture with a well-functioning decision-making process and ensure that both consultants and nursing staff have support.

Psychedelic treatments for mental health conditions pose challenges for informed consent
Comment
Carolina Seybert, Gonçalo Cotovio, Luís Madeira, Miguel Ricou, Ana Matos Pires, Albino J. Oliveira-Maia
Nature Medicine, 14 June 2023
Excerpt
   Enhanced informed consent procedures are needed for patients treated with psychedelics such as psilocybin and MDMA, due to effects that include an altered state of consciousness and vulnerability to suggestion.

In past years, clinical trials with psychedelic substances have been conducted to find alternative treatments for hard-to-treat mental health conditions such as treatment-resistant depression1, cancer-related depression and anxiety symptoms2 and post-traumatic stress disorder3. Clinical research has advanced under the regulation of national ethical and medication authorities for clinical trials, much as for any study testing a new intervention. Indeed, recent research on psychedelics has been conducted under the protected conditions of clinical trials, following international guidelines. However, psychedelic treatments present unique ethical and regulatory challenges that may not have been fully addressed within the traditional structures of clinical trial regulation4. These challenges need to be addressed before these substances are approved for use in general clinical practice…

Informed consent and compulsory treatment on individuals with severe eating disorders. A bio-ethical and juridical problem
M. Damato, P. Ricci, R. Rinaldi
Clinica Terapeutica, 2023; 174(4) pp 211-215
Abstract
Background
The problem concerning the activation of the measure of Compulsory Health Treatment (CHT) for subjects suffering from Eating Disorders (ED) represents a legal paradox that places health professionals in the position of frequently doubting the real usefulness of the measure within the hospital context. This issue is mainly related to anorexia nervosa, which puts the subject in a higher life-threatening situation than other EDs.
Method and materials
To outline the current state of the art, the most recent national and international scientific publications concerning informed consent and CHT in EDs were searched. In addition, Italian rulings in various degrees of judgement were evaluated with the suggestion of a possible resolution of these issues.
Results
The analysis of the literature showed that although a multitude of psychometric instruments has been created to identify the ability to give informed consent, there are still not all the elements necessary to identify the actual degree of disease awareness of ED subjects. An important factor could be the exploration of the person’s interception, which has been seen to be very high in individuals with AN who are known not to experience the sensation of hunger. At present, reviews of the bibliography and judgments have shown that the measurement of CHT remains crucial if it is intended as a lifesaving treatment. However, it is evident that in terms of BMI, CHT is not a definitive intervention and therefore the adoption of this practice is necessary with extreme caution taking into account the person’s actual ability to consent.
Conclusions
Future studies will have the task of determining the psychic factors necessary to better understand the state of the person in his or her physical and mental wholeness, giving due weight to these characteristics and orienting knowledge in a practical sense to more profitable direct treatment for individuals with ED.

Editor’s note: This is an Italian language publication.

For all (Hu)mankind? The intersection of mental capacity, informed consent and contract law with U.K. space law
Alexander Ian Simmonds
International Journal of Discrimination and the Law, May 2023
Abstract
The UK Space Industry Act 2018 has now been supplemented with the new Space Industry Regulations. While examples of Space Tourism grace our screens and newsfeeds on an increasingly regular basis such as William Shatner’s recent voyage (Luscombe, 2021) the UK Regulations also pave the way for ‘human occupants’ (UK Space Industry Regulations, Regulation 2) to experience such a flight (UK Space Agency, 2020). A key part of the regulations pertaining to human occupants is that they must provide ‘informed consent’ before embarking on such a flight. If, as is likely to be the case, future courts are to draw analogies with the current state of medical law in this area, spaceflight operators will have to tread carefully if they are to avoid vitiating any informed consent by ‘bombarding’ any willing human occupant with technical detail prior to their flight (Simmonds, 2020). Whilst this could prove legally problematic for ‘capacitous’ individuals within the meaning of the Mental Capacity Act 2005, it is likely to be even more so for those who could be deemed, in some aspects of their cognitive ability, to lack capacity. UK Space Legislation as it presently stands faces three problems: 1) There is presently no legal mechanism under UK Space Law to determine capacity. 2) As examples from the Court of Protection indicate, ‘capacity’ is a very nuanced legal concept and individuals who, on the fact of things, may appear to lack capacity as regards potentially risky activities, have been regarded by the Courts as, at least, partially capacitous in respect of certain decisions. Operators may find themselves having to tread a fine line to avoid claims of discrimination. 3) because of point 1) and the state of the Law of Contract as regards contractual relationships entered into by potentially incapacitous individuals, further significant legal problems may present themselves. This paper will focus primarily on the Law in England and Wales but some of the overarching conclusions will be of relevance to all UK jurisdictions.

Capacity to consent to research in older adults with normal cognitive functioning, mild and major neurocognitive disorder: an Italian study
Federica Del Signore, Alessia Rosi, Rocco Palumbo, Nicola Allegri, Alfredo Costa, Stefano Govoni, Elena Cavallini
Mediterranean Journal of Clinical Psychology, January 2023
Abstract
Background
A specific evaluation of the capacity to consent to research in older adults with cognitive decline is often not included routinely in research practice. However, there is a need to evaluate this competence adopting brief standardized instruments to guarantee their ethical rights. The present study evaluated in older adults with normal cognitive functioning, and major and mild neurocognitive disorders whether the Mini-Mental State Examination (MMSE) and a brief battery of neuropsychological tests are sensitive and specific to discriminate subjects able to provide consent to research.
Methods
54 participants with Major Neurocognitive Disorder (MajorNCD), 22 with Mild Neurocognitive Disorder (MildNCD), and 37 Normal Cognitive Functioning individuals (NCF). The capacity to provide consent was assessed using the MacArthur Competence Assessment Tool for Clinical Research. Cognitive functioning was assessed using the MMSE, Verbal Fluency Tests, Trail Making Test (TMT-A), Immediate and Delayed Recall Test.
Results
In the MildNCD and NCF groups, the aggregate score of neuropsychological tests showed high sensitivity and specificity in classifying subjects able to provide consent to research. In the MajorNCD group, MMSE, Recall test, and TMT-A performed better than the aggregate score in classifying subjects as able of consenting to the hypothetical research.
Conclusion
The choice of the best tool to assess the ability to provide consent to research may depend on the degree of cognitive impairment. MMSE is a good tool for subjects with MajorNCD. A more comprehensive battery of neuropsychological tests would represent a better tool in NCF and MildNCD individuals.

Assent and vulnerability in patients who lack capacity
Commentary
Christopher A Riddle
Journal of Medical Ethics, 17 April 2023
Excerpt
Smajdor’s Reification and Assent in Research Involving Those Who lack Capacity claims, among other things, that ‘adults who cannot give informed consent may nevertheless have the ability to assent and dissent, and that these capacities are morally important in the context of research’. More pointedly, she suggests we can rely upon Gillick competence, or that ‘it is worth thinking about why the same trajectory [as children] has not been evident in the context of [adults with impairments of capacity to give informed consent (AWIC)]’. I argue that her likening assent in AWIC to assent in children is problematic for at least two related reasons. First, direct comparisons between AWIC and children run the risk of perpetuating or reinforcing infantilising stereotypes against people with disabilities. Second, I argue that people with disabilities are vulnerable in ways that most children are not, and thus, are dissimilar in a morally relevant manner…

Editor’s note: The article which is referenced in this commentary was featured in the February edition of this digest.

Autonomy of Individuals with Alcohol-Related Disorders: Informed Consent and Empowerment
João Paulo Barbosa Azevedo
Journal of Addiction & Addictive Disorders, 12 April 2023
Abstract
Informed consent is a central concern in the care practice of individuals with alcohol- related disorders, with research and clinical practice indicating that they often refuse or abandon treatment early. In the relational care encounter it is important not only to recognize the patient as the subject of will and decision-making power, but also to pay attention to the experiences of vulnerability and the importance of promoting autonomy. These issues are particularly relevant when individuals with alcohol-use disorders come to treatment suffering from coercion or disturbed by anxiety and/or depression. A study on informed consent ethical practice was conducted on a sample of 85 professionals from the Addictive Behaviours and Dependencies network of the Regional Health Administration of the North, Portugal. A questionnaire was used to survey ethical attitudes. The results suggest the importance of reinforcing the practice of informed consent of individuals with alcohol-related disorders suffering from coercion, anxiety or depression as a place of a psychological empowerment process.

Informed consent with people judged incapable of legally consenting
Amy Bittick, Ryan Holliman
Advances in Mental Health and Intellectual Disabilities, 6 April 2023
Abstract
Purpose
The purpose of this study is to consider informed consent with those who may be legally judged incapable of consent. Frequently individuals with traumatic brain injuries and intellectual disabilities may fall into this category. This paper seeks to consider aspects of guardianship, moral and legal implications and best practices for mental health professionals.
Design/methodology/approach
This practice piece reviews literature regarding informed consent, as well as pertinent issues in the professional literature regarding types of guardianship as well as the occurrence of “Lucid intervals.” Furthermore, literature from moral philosophy and current legal research was examined to fully provide readers with a grasp of the legal and ethical landscape of this issue.
Findings
The paper finds that treating consent as a one-time binary event is lacking in both practicality and nuance. Moral philosophy and issues regarding paternalism are raised, as well as practice approaches to assessment of capability and how to engage in therapy in meaningful ways.
Originality/value
This paper provides insight into providing dignity-affirming therapy with a population that is often not considered in the literature of mental health ethics. When it is considered, the suggestions are so vague as to be of limited use. This manuscript provides nuance and practical applications to be a therapist that promotes dignity in those who might have varying levels of capacity to consent.

The Role of Different Aspects of Communication Behavior in the Assessment of Capacity to Consent
Luise Badenhoop, Stefanie Baisch, Susanne Penger, Julia Haberstroh
Journal of Gerontopsychology and Geriatric Psychiatry, 5 April 2023
Open Access
Abstract
Any medical treatment that interferes with physical integrity requires the informed consent of a patient capable of such consent. For people with dementia, the capacity to consent is questioned even in the early course of the disease. Particularly diagnostic instruments like the MacArthur Competence Assessment Tool for Treatment (MacCAT-T) often deny people with dementia the capacity to consent because of high confounding of the results with patients’ verbal abilities. To date, it remains unclear whether not only verbal but also nonverbal communication is associated with assessments of capacity to consent. The current study investigates associations between patients’ verbal and nonverbal communication behaviors as assessed by the measure for Communication Behavior in People with Dementia in Ambulant Settings (CODEMamb) and capacity to consent as assessed by the MacCAT-T. We expected the strongest positive associations for verbal communication behaviors compared to nonverbal communication behaviors. Data of N = 43 patients with dementia (n = 8 capable of consent) were collected at two different German psychiatric clinics. The results show small to moderate correlations between the overall scores of CODEMamb and MacCAT-T. As expected, correlations were strongest for the verbal CODEMamb subscale. The results support current findings on the dependency of the MacCAT-T on verbal communication. Based on the findings, the discussion addresses how people with dementia can be enabled to make self-determined medical treatment decisions.