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Chapter 16 - Capacity to Consent to Research

28 July 2021 - 14:07 | Version 10 |

Contributed by Nick O’Neill with input from Carmelle Peisah, current to 30 April 2021.

16.1 Introduction

Clinical research with cognitively impaired adults is important. It is essential for improving the treatment of several conditions. Specifically, cognitively impaired adults have an equitable right to research being conducted in areas relevant to their treatment and care, and should be given an equitable opportunity to participate in such research, even if they lack capacity.(1) They also have a right to autonomy of choice as well as to safeguard their interests in regards to research participation, and they should not be denied the opportunity to participate in research from which they may benefit.(2)(3) This chapter will address some of the principles of research governance designed to safeguard the interests of adults who lack capacity to consent to research as well as providing guidelines as to the assessment of capacity to consent to research.

The chapter also discusses the legislation in New South Wales, Queensland and Victoria relating to substitute consent to “experimental” medical treatments and treatments available through clinical trials.

16.2 Research governance

The relevance of capacity to consent to participate in research was first recognised formally in the Nuremberg Code, which was an attempt to codify principles to guide human experimentation in response to the perpetration of the Nazi atrocities.(4) The Code deemed essential the voluntary legal consent of the subject, which meant that the subject must have legal capacity to give consent.(5)

The next major attempt to codify research governance was the promulgation of the Declaration of Helsinki in 1964 by the World Medical Association. Hitherto unacknowledged by the Nuremberg Code, a provision for involvement of subjects lacking capacity to participate in research was included in the Declaration. Research was divided into two categories based on the researcher’s intent, both categories allowing for consent of a third party (referred to as a ‘legal guardian”) to be substituted for that of an incompetent subject. These categories included:
  1. Therapeutic research - procedures primarily aimed to benefit a particular patient but incidentally also broadened knowledge of the condition or its treatment; and
  2. Non therapeutic research - where the intent was to extend knowledge to benefit future patients but made no claim to benefit individual patients.(6)
By 2000 it was increasingly argued that this distinction, developed in an attempt to protect vulnerable patients by discouraging their involvement in non-therapeutic and theoretically more hazardous research, was outmoded and misleading, and the World Health Medical Association set out general standards for all research to be assessed according to the same criteria of risks and benefits. Nevertheless, the distinctive risk- benefit context of research as opposed to treatment and the notion of a risk hierarchy are important considerations in modern research codes.

Subsequently, research regulations have been developed in legislative frameworks and policies of major health governing bodies in both Europe (7)(8) and the United States, to implement uniform rules on clinical trials and to protect those who cannot give consent. For example, in 2009, the Secretary’s Advisory Committee on Human Research Protections (SACHRP) of the Office for Human Research Protections (OHRP) United States Department of Health and Human Services convened the Subcommittee on Inclusion of Individuals with Impaired Decision-making in Research (SIIIDR). It was specifically noted by the Committee:

[D]espite over thirty years of federal oversight of human subject research in the United States, an understanding that these individuals are uniquely susceptible to exploitation and research related harm, and several high profile attempts to regulate in this area, research regulations and related guidance remain all but silent with regard to individuals who have impaired consent capacity.(9)

Recommendation 2 of the Committee sought to define the nature of consent capacity as it related to research participation as follows:
  1. An individual’s consent capacity is not simply present or absent; capacity is best understood as occurring along a continuum.
  2. Impaired consent capacity occurs in a wide range of conditions and disease states. To respect the rights and welfare of all research participants, guidance should encourage the development of policies that acknowledge the many manifestations of impaired consent capacity and are not limited to consideration of specific disorders.
  3. Consent capacity is task-specific and depends on the nature and complexity of the relevant decision-making process. Therefore, a judgment regarding an individual’s capacity to consent may not be the same for all research studies.
  4. In many individuals, impairment in capacity to consent is not a static phenomenon. During the course of a research study, a research participant’s consent capacity may improve, fluctuate over time, or worsen with changes in the individual’s underlying condition. Guidance should encourage policies on consent, the assessment of capacity, and the use of surrogate-based consent procedures to reflect this fact.(10)
Similarly, in the United Kingdom, the Medical Research Council published guidelines for Ethical Conduct of Research on the Mentally Incapacitated which covered issues related to consent and safeguards for including mentally incapacitated people in research in 1991(11) and guidelines for good clinical practice in clinical trials in 1998.(12) The Medicines for Human Use (Clinical Trials) Regulations 2004 (UK) came into force in the 2004 to cover the conduct of clinical trials on medicinal products. The latter allowed a legal representative of the person not connected with the conduct of the trial to consent to the participation of incompetent adults in medical research.(13) The Mental Capacity Act 2005 (England and Wales) which came into force in April 2007, governs decision-making on behalf of adults who lack mental capacity, both where they lose capacity at some point in their lives, or where the incapacitating condition has been present since birth. It has clarified and enshrined in legislation the requirements for when adults who lack the capacity to consent are included in medical research studies.(14)

In Australia, the National Health and Medical Research Council (NHMRC) has published guidelines for ethical conduct in human research, updated in 2007.(15) This statement emphasises the entitlement of people with a cognitive impairment, disability or mental illness to participate in research and the need for care in the research design both to take into account factors that may affect the capacity to receive information, to consent and participate, and to determine if the person’s condition makes them susceptible to discomfort or distress. Because of the person’s vulnerability, the risks to and burdens imposed on them by the research must be justified by the potential benefits of the research. The NHMRC guidelines regarding consent for people with cognitive impairment, intellectual disability or mental illness include:
  1. Consent must be sought either from the person themselves if they have the capacity to consent, or the person authorised to consent on their behalf;
  2. Consent should be witnessed by a person who has the capacity to understand the merits, risks and procedures of the research and is independent of the research team, knows the person and is familiar with their condition;
  3. If the cognitive impairment is episodic consent should be sought when the condition does not interfere with the person’s capacity;
  4. The process of seeking consent should include discussion of any possibility of the person losing their capacity to consent and the person’s wishes in that circumstance followed unless to do so would not be in their best interests;
  5. Where consent is sought by a proxy, the researcher should still explain to the participant as far as possible what the research is about;
  6. Researchers should inform Human Research and Ethics Committees how they propose to determine capacity (including how the decision will be made and by whom, criteria used and process for reviewing capacity during the research); and
  7. Refusal or reluctance to participate should be respected.(16)
Subsequently, reflecting the burgeoning interest in this area internationally, the United States OHRP compiled the International Compilation of Research Standards, a list of over 1,000 laws, regulations and guidelines that govern human subject research in 120 countries.(17)

16.3.1 New South Wales

The Guardianship Act 1987 (NSW) came into force in August 1989 well in advance of the National Health and Medical Research Council’s guidelines and the inclusion of Australian hospitals and other medical institutions in clinical trials particularly those that might involve those unable to give a valid consent. Initially the Act dealt only with particular medical or dental treatments that were “experimental” in the sense that they were new treatments that has not yet gained the support of a substantial number of medical practitioners or dentists specialising in the area of practice concerned.(18) Only the NSW Guardianship Tribunal and not the incapable person’s person responsible could give its consent to such treatment. Before it could give its consent, the Tribunal had to be satisfied that:
  1. the treatment was the only or most appropriate way of treating the person and was manifestly in their best interests, and
  2. insofar as the National Health and Medical Research Council had prescribed guidelines that were relevant to the carrying out of that treatment—those guidelines had been or will be complied with as regards the person.(19)
Amendments to the Guardianship Act which came into force in 1998, after the Standing Committee on Social Issues of the New South Wales Legislative Council recommended their enactment.(20) The effect of those amendments was that the then NSW Guardianship Tribunal, now the NSW Civil and Administrative Tribunal (NCAT) must give its approval to a clinical trial before that clinical trial may include among its patients people aged 16 years and above who are unable to give a valid consent to their own treatment.

A clinical trial is defined as a trial of drugs or techniques that necessarily involves the carrying out of medical or dental treatment on the participants in the trial. To be a clinical trial the proposed treatment must be a new or experimental treatment for the condition it is being proposed as a treatment for.(21)

NCAT may not give its consent to a clinical trial unless it is satisfied as to all of the following, namely that:(22)
  1. the drugs or techniques being tested in the trial are intended to cure or alleviate a particular condition from which the patients suffer. Consequently, NCAT looks at the matter from the perspective of the prospective patients and must be satisfied from the Trial Protocol that only those with the condition that the drug or technique being tested the trials is intended to cure or alleviate will be included in the trial.
  2. the trial will not involve any known substantial risks to the patients or, if there are existing treatments for the condition concerned, will not involve material risks greater than the risks associated with those existing treatments.
  3. the development of the drug or technique has reached stage at which safety and ethical considerations make it appropriate that it be available to patients who suffer from that condition even if those patients are not able to consent to take part in the trial.
  4. having regard to the potential benefits, as well as the potential risks, of participation in the trial, it is in the best interests of the patients who suffer from the relevant condition that they take part in the trial.
  5. the trial has been approved by the relevant ethics committees of the hospitals or other institutions in New South Wales that intend to take part in the clinical trial and finally that the clinical trial complies with any relevant guidelines issued by the National Health and Medical Research Council.(23)
As a matter of practice, NCAT will not deal with an application to approve a clinical trial until after proof that the relevant ethics committee has approved that clinical trial has been lodged with it.

The legislation specifically states that the fact that a clinical trial will or may involve the giving of placebos to some of the participants does not prevent NCAT from being satisfied that it is in the best interests of patients that they take part in the trial.(24)

If NCAT gives its consent to the clinical trial, that completes the first part of the process. The second part of the process is for NCAT to decide whether it will decide in each case whether an incapable potential patient can take part in the trial or whether it will give the function of giving or withholding consent for the carrying out of medical or dental treatment on patients in the course of the trial to the “person responsible” for each of the incapable patients.(25) It is the practice of NCAT to give this consent function to the “person responsible".(26) However, before deciding to do so, it must be satisfied that the forms for granting consent and the information available about the trial developed by the hospital or other institution taking part in the trial provide sufficient information to enable the “persons responsible” to decide whether or not it is appropriate that the incapable patient they are “person responsible” for should take part in the clinical trial.(27)

NCAT is required to provide details of any clinical trial that it approves in its Annual Report.(28) In fact it provides details of any clinical trial it is asked to approve, whether it approves the clinical trial or not. Examples of the kinds of clinical trials that come to the Tribunal for approval are trials for patients who are critically ill, who have sepsis, suffer from a stroke or have Alzheimer’s disease.

16.3.2 Queensland

The Guardianship and Administration Act 2000 (Qld) follows the approach of the New South Wales Act broadly in relation to experimental treatment and closely in relation to clinical trials.

In Queensland experimental treatment is called special medical research or experimental health care and is defined as either medical research or experimental health care relating to a condition the adult has or has a significant risk of being exposed to or medical research or experimental health care intended to gain knowledge that can be used in the diagnosis, maintenance or treatment of a condition the adult has or has had.(29) QCAT is the only consent authority for such treatment and has to be satisfied about a substantial list of matters before it may give its consent to the research or health care. The treatment could be consented to as health care.(30)

In a 2006 case that is relevant to the question of experimental treatments in New South Wales, the then Queensland Guardianship and Administration Tribunal held that the only treatment for a particular genetic condition that a 38 year old man with severe intellectual disability had was not experimental health care (experimental treatment).(31) This was because it had long been accepted by specialists in the field and by the leading texts in the field. The Tribunal also considered that the treatment was not special medical research. There was no systematic inquiry or investigation into the treatment and the fact that it had not been the subject of approval or included on the Australian Register of Therapeutic Goods established under the Therapeutic Goods Act 1989 (Cth) did not make it special health care.(32)

In relation to clinical trials, the Act provides that QCAT must first approve the clinical trial, according to criteria essentially similar to the New South Wales criteria.(33) QCAT does not give the individual consents as to who may take part in a clinical trial that it has approved. Those consents are to be sought first according to any relevant direction in a health care directive if the incapable person has made one. If not then the decision will be made by a guardian if QCAT has appointed one for the incapable person. If that is not the case but the incapable person has appointed an attorney under an enduring power of attorney to deal with the matter, then consent should be sought from that person. If no such attorney has been appointed, then consent should be sought from the person’s statutory health attorney.(34) The Public Guardian is the default statutory health attorney for the incapable person who would otherwise have no one to act as a substitute decision-maker for them in relation to this matter.(35)

16.3.3 Victoria

The Guardianship and Administration Act 1986 (Vic) was amended, with effect from July 2006, to provide for a four-step process for authorising the carrying out of a medical research procedure on an incapable adult. However, unlike the New South Wales and Queensland legislation, it did not require that VCAT approve the medical research procedure before any adult unable to give a valid consent to their own medical treatment could take part. Also, the Victorian legislation allowed doctors to include an incapable person in a research project and to carry out the research procedure on them without obtaining substitute consent in certain circumstances.

When the Medical Treatment Planning and Decisions Act 2016 (Vic ) came into force on 12 March 2018, the provisions relating to medical research procedures were removed from the Guardianship and Administration Act 1986 (Vic) and placed, in an amended form, in the new Act. (36)

To understand how the new the Medical Treatment Planning and Decisions Act 2016 (Vic) works, and the policy approach that drives, it is useful to consult Chapter 12.1 and 12.6.1 in particular. Much of what is set out below is also found in Chapter 12.6.4.3; but it is repeated here for the convenience of those interested primarily in medical research and the arrangements in place in different parts of Australia about people who cannot consent to their own medical treatment having access to what is considered to be medical treatment still in its experimental or proving stages.

16.3.3.1 Medical research procedure defined

A medical research procedure is a procedure carried out for the purposes of medical research, including, as part of a clinical trial, the administration of pharmaceuticals, the use of equipment or a device or a prescribed medical research procedure.(37) However, activities such as non-intrusive physical examinations, observing a person’s activities or conducting a survey are not included in the definition, so do not require consent.(38)

16.3.3.2 What medical research procedures may be administered to a person lacking the capacity to make decisions about what medical research procedures they wish to receive

The Act is structured so that a medical research practitioner must not administer a medical research procedure to a person who does not have decision-making capacity to make a medical treatment decision in relation to that procedure unless the research project has been approved by the relevant human research ethics committee.(39)

In addition to that committee’s approval of the research project, authority to carry out a particular medical research procedure on a person unable to consent to the proposed procedure being given to them must also be provided. This can be done in one of three ways, namely where the person: 1 has consented, in an instructional directive, to the procedure being administered to them, or 2 has not made an instructional directive, but their medical treatment decision maker has consented to the procedure being administered, or 3 does not have a medical treatment decision maker; but the procedure is authorised by the processes set out in ss 79-81 of the Act being complied with.(40)

The first way of consent being provided is another manifestation of the policy of the Act of maintaining a person’s decision-making autonomy into the period or periods in which they lack decision-making capacity.(41)

The second way provides for a substitute medical treatment decision-maker appointed by the person for whom the medical research procedure is proposed to make the decision. However they have to be reasonably available and willing and able to make the decision. If they do not meet those criteria and VCAT has appointed a guardian with power to make medical treatment decisions on behalf of the person, and in the circumstances, they are reasonably available and willing and able to make the medical treatment decision, then they are the person's medical treatment decision maker.(42)

If the person has not appointed a medical treatment decision-maker and has no VCAT appointed guardian or neither of such appointees is reasonably available and willing and able to make the decision, then the first in the hierarchy of persons, set out in the footnote to this sentence, who is in a close and continuing relationship with the person to be treated and who, in the circumstances, is reasonably available and willing and able to make the medical treatment decision, is the person's medical treatment decision maker for the special medical procedure.(43)
16.3.3.3.3 Authority to proceed as a result of complying with certain legislative provisions

Where there is no one to act as the person's medical treatment decision maker, then it is up to the medical research practitioner to decide whether or not to administer the proposed research procedure without consent. If the practitioner decides to do this, they must comply with all the requirements of ss 79-81 of the Act .(44) A medical research practitioner in this context is either a medical practitioner or a registered dentist practising in the dental division of that profession.(45) They must believe, on reasonable grounds, a number of things:

  1. that inclusion of the person in the relevant research project, and being the subject of the proposed procedure, would not be contrary to the following; a. the person’s values whether expressed by way of
    1. a values directive or otherwise; or
    2. inferred from the person’s life;
    3. any other relevant preferences that the person has expressed; however taking account of the circumstances in which those preferences were expressed; and
    4. the personal and social wellbeing of the person having regard to the need to respect the person’s individuality.(46)
  2. that the relevant human research ethics committee has approved the relevant research project in the knowledge that a person may participate in the project without the prior consent of the person ora medical treatment decision maker for such a person;(47)
  3. that one of the purposes of the relevant research project is to assess the effectiveness of the procedure being researched, andthe medical research procedure poses no more of a risk to the person than the risk that is inherent in the person's condition and alternative medical treatment; and; (48)
  4. that the relevant research project is based on valid scientific hypotheses that support a reasonable possibility of benefit for the person as compared with standard medical treatment.(49)
Note also that the (or another) medical research practitioner must continue to take reasonable steps to identify and contact the person's medical treatment decision maker to seek consent to the continuation of the procedure on the person.(50)

Note also that, either before or as soon as possible after administering the medical research procedure, the medical research practitioner must sign a certificate certifying:

  1. that the person to whom the medical research procedure is being administered does not have decision-making capacity to make a medical treatment decision in respect of that procedure; and
  2. that the person's medical treatment decision maker cannot be identified or contacted; and
  3. as to each of the matters set out in the last list.(51)
That certificate must state that:

  1. if one is identified, the person's medical treatment decision maker will be informed of the procedure; or
  2. if the person recovers decision-making capacity, they will be informed of the procedure.(52)
The medical research practitioner must inform the person's medical treatment decision maker (if one is subsequently identified) or, if the person recovers decision-making capacity, the person, as soon as reasonably practicable of
  1. their inclusion in the relevant research project; and
  2. the option to refuse the continuation of the procedure and withdraw the person from future participation in the project without compromising the person's ability to receive any available alternative medical treatment or care.(53)
Further the medical research practitioner must forward a copy of the certificate to the Public Advocate and the relevant human research ethics committee, and ensure that the certificate is kept in the person's clinical records.(54)

16.3.3.4 Medical research procedures in an emergency

As already noted in Chapter 12.6.4.1, a health practitioner may administer a medical research procedure to a person without consent or authorisation if they believe on reasonable grounds that the medical research procedure is necessary, as a matter of urgency to—
  • save the person's life; or
  • prevent serious damage to their health; or
  • prevent them from suffering or continuing to suffer significant pain or distress.(55)

16.3.4 Australian Capital Territory

In 2016, the Australian Capital Territory took a different approach from that taken in New South Wales, Queensland and Victoria in relation to people who had lost capacity to consent to taking part in medical research. Amendments to the Powers of Attorney Act 2006 (ACT), which came in force on 1 September 2016, removed barriers to people with impaired decision-making capacity participating in medical research and to low risk research which is not part of a clinical trial.

The 2016 amendments introduced a new form of enduring power of attorney – a medical research power of attorney.(56) By making such a power of attorney, a person wishing to take part or to continue to take part in medical research or low risk research (the maker) can authorise an attorney to consent to the maker participating in or continuing to participate in medical research matters. (The provisions in relation to low risk research are returned to below.) The Act describes medical research matters as either medical research or low-risk research.(57)

Medical research is itself described in the Act to mean research in relation to the diagnosis, maintenance or treatment of a medical condition that the person has or has had or to which the person has a significant risk of being exposed.(58) It includes experimental health care; and it too is described in the Act.

Experimental health care is research into health care that has not yet gained the support of a substantial number of practitioners in that field of health care. While it may not be medical in nature, it has to be delivered as part of a test or trial.(59)

Medical research can also include the administration of medication or the use of equipment or a device as part of a clinical trial and research prescribed by regulation as medical research.(60) However medical research does not include low-risk research.

Low risk research is described as research carried out for medical or a health purpose that poses no foreseeable risk of harm to the person, other than any harm usually associated with the person’s condition; and does not change the treatment appropriate for the person’s condition; but it does not include any activity that is part of a clinical trial.(61) If the research includes any activity that is part of a clinical trial, then the research is medical research.

In addition to authorising their attorney to exercise power in relation to a medical research matter, the maker of a medical research power of attorney may also authorise their attorney to exercise power in relation to a health care matter.(62) While a health care matter is defined in this context as a matter that is neither a special health care matter nor a medical research matter, the examples in the Act of health care matters that a power of attorney (the document), and thus an attorney (a person appointed as an attorney in the document), may deal with are significant. They include:
  1. consenting to lawful medical treatment necessary for the maker’s wellbeing;
  2. donations (other than donations of non-regenerative tissue) under the Transplantation and Anatomy Act 1978 (ACT) by the maker to someone else;
  3. withholding or withdrawal of medical treatment for the maker;
  4. legal matters relating to the maker’s health care; and
  5. consenting to treatment for a mental illness (other than electroconvulsive therapy or psychiatric surgery) necessary for the maker’s wellbeing.(63)
The 2016 amendments to the Act allow enduring powers of attorney made before those amendments came into effect and authorising the attorney to exercise power in relation to health care matters to be treated as medical research powers of attorney. While they authorise the enduring attorney to exercise power only in relation to the health care matter or matters set out in that power of attorney and not exercise power in relation to medical research as defined in the Act, such powers of attorney may authorise an attorney to exercise some or all of the significant matters set out in the last paragraph above.

Importantly the Act requires an attorney appointed in a medical research power of attorney to follow a substantial set of decision-making principles if (and when) the maker of the power of attorney has impaired decision-making capacity.

While these reflect decision-making principles that are found in the guardianship legislation of other States and the Northern Territory, the Australian Capital Territory Act requires, in terms, that an attorney authorised under a medical research power of attorney who is asked, in that power of attorney, to consent to the maker participating in medical research or low-risk research must exercise the power [given in the power of attorney] in accordance with the following principles:
  1. the maker’s wishes, as far as they can be worked out, must be given effect to, unless making the decision in accordance with the wishes is likely to significantly adversely affect the maker’s interests;
  2. if giving effect to the maker’s wishes is likely to significantly adversely affect the maker’s interests—the attorney must give effect to the maker’s wishes as far as possible without significantly adversely affecting the maker’s interests;
  3. if the maker’s wishes cannot be given effect to at all—the maker’s interests must be promoted;
  4. the maker’s life (including the principal’s lifestyle) must be interfered with to the smallest extent necessary;
  5. the maker must be encouraged to look after themselves as far as possible;
  6. the maker must be encouraged to live in the general community, and take part in community activities, as far as possible;
  7. if the maker was participating in medical research or low-risk research before they became a person with impaired decision-making capacity, it is presumed that their wishes include to continue participating in the medical research or low-risk research.(64)
However without limiting the consultation that an attorney may carry out, before making a decision, the attorney must consult with each of the maker’s carers.(65) In this context a carer is a person who the maker of the medical research power of attorney is dependent on for ongoing care and assistance. However, while the Act does not preclude the attorney consulting such a person, a person who provides care to the maker because of a commercial arrangement or a substantially commercial relationship is not a carer for the purposes of the attorney’s obligation to consult.(66) It should also be noted that an attorney must not consult with a carer, as described earlier in this paragraph, if the consultation would, in the attorney’s opinion, adversely affect the maker’s interests.(67)

As is already apparent from the decision-making principles just outlined, an attorney may consent to the maker of the medical research power of attorney participating in medical research only if the statutory conditions, which support the already established fundamental ethical standards governing research and which are set out in the Act, are met. These conditions are:
  1. the maker of the power of attorney has impaired decision-making capacity;
  2. the research is approved; and
  3. the maker is not likely to regain decision-making capacity before the latest time that the maker may meaningfully participate in the research;(68) and
  4. the attorney is satisfied on reasonable grounds that
    1. the research relates to the diagnosis, maintenance or treatment of a condition that the maker has or has had or to which the maker has a significant risk of being exposed; and
    2. the research may result in benefit to the maker or others with the condition; and
    3. the potential benefit to the maker, or others with the condition, of participating in the research outweighs any potential risk or inconvenience to the maker, or any potential adverse impact on the maker’s quality of life; and participating in the research will not unduly interfere with the maker’s privacy.(69)
We note that an attorney dealing with the question of whether to consent to the person who appointed them as their attorney under a medical research power of attorney participating in particular medical research may apply to the ACT Civil and Administrative Tribunal (ACAT) for an opinion or advice. If such an application is made to it, ACAT must give an opinion or advice to the attorney to assist them to decide whether or not to give consent.(70)

Again if the maker of a medical research power of attorney has impaired decision-making capacity, an attorney appointed in that power of attorney who has authority to consent to the maker participating in medical research also has authority to consent to the maker participating in low risk research; but only if the research has been approved.(71)

Also if such an attorney applies to ACAT for an opinion or advice, ACAT must give an opinion or advice to the attorney to assist them to decide whether or not to give consent.(72)

While on the one hand ACAT is obliged to give an opinion or advice on the application of an attorney, on the other hand it has jurisdiction, on the application of an interested person (73), to review a decision of the attorney to consent, or refuse to consent, to the maker of the power of attorney participating in medical research or low-risk research.(74)

Consistent with their ethical and fiduciary duties to the person who has appointed them as an attorney in a medical research power of attorney, an attorney must not accept a fee or other benefit for consenting, or refusing to consent, to the maker participating in low-risk research or medical research. Also an attorney must not be involved in, or connected to, the research.(75)

*In the Australian Capital Territory a note in a section of an Act is not part of the Act and so not part of the law made by the Act.(76) Nevertheless a note inserted into an Act is likely to have been carefully considered and almost certainly a correct statement of the law. Before Part 4.3A was added to the Powers of Attorney Act 2006 (ACT) there were, and still remain, in the Medical Treatment (Health Directions) Act 2006 provisions allowing adults to make health directions. This raises the possibility of inconsistency between a health directions and a power of attorney. A note inserted after s. 41C(2) of the Powers of Attorney Act 2006 (ACT) states that, if a principal [maker] has made a health direction under the Medical Treatment (Health Directions) Act 2006, when making a decision under this section [which relates to consent to low risk research only], the attorney must comply with the health direction if it is consistent with the power of attorney. But if it is inconsistent with the power of attorney, the attorney must comply with the document that was made most recently.(77)

16.3.5 Western Australia, South Australia, Tasmania and Northern Territory

At the time or writing, Western Australia, South Australia, Tasmania and the Northern Territory did not have legislation dealing directly with those who lack capacity to consent to their own treatment receiving experimental treatment or taking part in clinical trials. While it might be arguable in some of those States or the Northern Territory that incapable people could be given treatments that are new treatments that have not yet gained the support of a substantial number of doctors specialising in the area of practice concerned or could be given treatment available only if they took part in a particular clinical trial, there are two immediate difficulties. First, it may not be in the best interests of the person that they receive the treatment or take part in the clinical trial. It may be in the interests of others that they do. Second, in many clinical trials some of the participants receive a placebo and not the existing treatment. As many of these trials are randomized and double-blinded, it not possible to work out who is receiving the treatment and who is not. Consequently, an incapable person may take part in such a trial and not receive the medication being tested.

In Tasmania, for example, treatment without consent may only take place where the treatment is necessary.(78)

Returning now to the question of a person being able to consent themselves to taking part in medical research. It is assumed that all persons 18 years and above can give a valid consent to taking part in medical research. It is the obligation of those conducting the medical research to explain to the person what is being undertaken and the processes of that research that involve the person. It is because of the information that is supplied to that the person, and understood by them, that leads to them giving a valid consent. (A valid consent is sometimes called an informed consent.) The presumption of capacity arises if, in the process seeking consent, something occurs to trigger the question of the person’s capacity to consent to taking part in the research. In the research context, the trigger for challenging this presumption and assessing capacity is usually identified by the research team developing the research protocol or by the relevant institutional ethics board, and dependent on the research population.(79) The research protocol will determine how capacity should be assessed and who should assess capacity, and the rigor of capacity testing often depends on the risk-benefit analysis of the research protocol. Accordingly, a high-risk study might require an elaborate capacity evaluation assessment scheme using a high capacity threshold, performed by independent experienced evaluators.(80)

Capacity to consent to research is assessed in the same way as capacity to consent to medical treatment but with additional safeguards.(81)(82) Importantly, participants involved in clinical research should understand the difference between treatment and research protocols, including such things as randomisation and the use of placebos.(83)

A number of standards to define capacity to consent to research have evolved over the last 25 years but most comprise various combinations of four commonly used elements which are conceptually similar to those used to define capacity to consent to treatment. They are:
  1. factual understanding of the issues including an understanding of the procedure or treatment its risks and side effects, available options and their advantages and disadvantages and the consequences of participation and non-participation;
  2. rational manipulation of information or reasoning;
  3. appreciation of the nature of the situation; and
  4. evidencing a choice.(84)

16.4.1 Instruments

A number of instruments have been developed to structure and standardise the assessment of capacity to facilitate efficiency and ease of use by researchers, and to provide benchmarking data to guide capacity thresholds.(85) The MacArthur Competence Assessment Tool for Clinical Research (MacCAT -CR) is probably the most widely used instrument for the study of decision making capacity in research. This tool, administered by a structured interview which takes approximately 15-20 minutes to administer, comprises 21 items assessing all of the four elements of capacity: understanding, appreciation, reasoning and evidencing a choice.(86) The understanding subscale, in particular, has been shown to have reliability and predictive value in identifying patients with mild to moderate Alzheimer’s disease who are capable of giving consent.(87) The MacCAT -CR also had predictive value in determining capacity for informed consent in schizophrenia research.(88)

Since the development of the MacCAT -CR there have been a number of attempts to develop more parsimonious but still valid and reliable tests for capacity to consent to research participation, particularly for cognitively impaired individuals who may have limited ability to concentrate as a result of both physical and cognitive problems.(89)

Another commonly used measure is the California Scale of Appreciation (CSA), which specifically assesses the "appreciation" component of capacity. It comprises 18 items which assess whether or not participants form adequate beliefs about how the information provided applies to them. The CSA is a reliable and potentially useful instrument for measuring the appreciation component of capacity in persons with psychotic disorders,(90) although some doubt has been cast about its validity because the majority of participants were found to be fully "capable" on the CSA.(91)

The Evaluation to Sign Consent (ESC) tool is a five-item measure developed to better assess the “understanding” component of capacity in response to previous findings that suggested that study participants could not correctly state the purpose of the research study in which they had consented to participate.(92)

An even shorter 3 item decisional capacity questionnaire showed strong correlation with the Mac CAT-CR understanding, and moderate, but still significant correlations with appreciation and reasoning in subjects with schizophrenia, Alzheimer’s disease and type 2 diabetes mellitus. Although the optimal cut-off score gave 100% sensitivity, specificity was only 77%.(93) In this study the level of cognitive deficits measured with the Mini-Mental State Examination was generally the best predictor of decisional capacity, particularly in the understanding component.

Differentiating capable from incapable subjects remains an issue despite the aid of standardised tools.(94) The currently identified goal of research in this area is to find markers of potential impaired capacity. Ideally they are, sensitive, brief questionnaires targeting key aspects of disclosed information which effectively screen for participants warranting more comprehensive capacity evaluations.(95) In many research centres, the assessment of decisional capacity, particularly of subjects with dementia, lacks uniformity, when it is performed at all. Where decisional capacity is either formally or informally assessed, a variety of methods are used ranging from clinical judgment to extrapolation from psychometric performance.(96) In a study of clinicians’ perceptions of videotaped capacity interviews involving two scenarios of different risk (i.e. a medication-randomized clinical trial and a neurosurgical clinical trial), Kim and others showed that although clinicians used a risk-sensitive model of capacity determination (a higher degree of capacity required in higher-risk situations), there is considerable unexplained variability in their judgments.(97)(98)

16.4.2 Patient predictors of capacity

Considerable discussion still surrounds issues related to the capacities of patients with neuropsychiatric disorders to consent to research. It is agreed, however, that age and diagnosis should not be viewed as determinants of decisional capacity.(99) The presence of disorder does not imply impairment in capacity. Although some studies have found, for example, that even relatively mild Alzheimer's Disease significantly impairs consent-giving capacity (100) there is considerable heterogeneity in decision-making capacity even within each diagnostic group, particularly amongst those with schizophrenia, and sufficient to warrant individualized consideration of capacity.(101)(102) Of course, this will clearly depend on how capacity is defined or tested, and on the capacity task. Using an 11 item test based on the eight elements of informed consent stated in the Unites States Code of Federal Regulations (1991), Buckles and others found that 92% of mildly demented subjects provided correct answers for at least 80% of the items compared with 67% of moderately demented subjects.(103) However, this test only assessed the understanding of consent information which is but one component of the capacity construct and probably the less cognitively demanding. Accordingly, mildly demented subjects may perform as well as non-demented subjects on the less demanding standards such as making a choice to participate and for appreciating the personal consequences of participation, but be unable to provide rational reasons for their choices or understand the treatment situation, particularly associated with complicated research protocols involving placebo randomisation and serious adverse events.(104)

Individual consideration of capacity is equally important for those with mental illness. Although the presence of bipolar disorder appears to be a risk factor for impaired understanding of information disclosed under standard consent procedures, the diagnosis should not be equated with a lack of competence to consent.(105)

Further, it is difficult to find correlations between specific cognitive deficits and the elements of capacity to consent to research. In studies of patients with bipolar disorder and schizophrenia, although the strongest correlates of capacity (particularly, understanding and appreciation of disclosed information) were cognitive test scores, there was little evidence of differential relationships between individual cognitive abilities on neuropsychological testing and specific dimensions of capacity. Understanding was correlated with severity of negative symptoms and of general psychopathology.(106)(107)

16.5 Research involving adults who have cognitive impairment

The evidence-base for the treatment of many of the conditions which affect cognition and potentially impair capacity (particularly involving older people) is lacking and more research is needed. New medical treatments, whether they are drug or procedure-related, are discovered and proved effective and existing treatments are made more effective only through research. Research is also necessary to develop new and improve upon existing treatments to be used to alleviate or cure the conditions that render people permanently incapable of giving a valid consent to their own treatment. Such treatments cannot be proved effective unless they are carried out on those who have the particular conditions the treatment is designed to address. It follows from this that treatment must be carried out on incapable people, but only under controlled circumstances. One of the major areas of research is that of looking for treatments that alleviate the impact of or prevent the development of dementia in individuals. Thus limiting research to people who are able to decide for themselves would deprive people who lack capacity of proven therapies for the conditions which specifically affect them.(108)

Because of those considerations, people with cognitive impairment and mental illness should have the right and be given the opportunity to participate in research, even if they lack capacity.(109) Safeguards, of course, are needed to ensure that participants who lack the capacity to give informed consent are protected.(110) It has been suggested that as a general rule of thumb, people who lack capacity to consent for themselves should only ever be involved in projects from which they are likely to benefit or which benefit people in the same category and which cannot be undertaken on people who are able to consent.(111) A useful ethical question for appropriateness of research involving people unable to give consent, particularly for research that poses greater than minimal risk, is whether it is of sufficient value or is socially valuable.(112)

As already noted at 16. 3. 1 above, the New South Wales legislation requires what is now the Guardianship Division of NCAT to be satisfied that, having regard to the potential benefits, as well as the potential risks, of participation in the trial, it is in the best interests of the patients who suffer from the relevant condition that they take part in the trial before it may approve that trial as one in which those unable to give a valid consent to their own treatment may take part.(113) To meet this criterion, NCAT has to be presented with some evidence that taking part in the clinical trial will be of benefit to the incapable participants themselves. The evidence has to go beyond the suggestion that, if they had capacity, they would feel good about themselves taking part in the trial.

However, there are a number of ways of supporting the involvement of cognitively impaired adults in such research. These are by:
  1. facilitating a process by which they can give their own consent.
    Supported decision-making is a process by which this could be done in some cases.
  2. considering their previously expressed opinions.
    One mechanism for achieving has already been dealt with at 16. 4. 3 above which sets out the Australian Capital Territory legislation allowing adults to make medical research powers of attorney. But other approaches could be considered, including advance directives dealing with the question of medical research.
  3. obtaining the consent of proxy decision-makers.
The second and third approaches just set out, are reflected in the legislation in New South Wales, Queensland and Victoria setting out processes by which people with decision-making disabilities may be included in clinical trials. While what has been done in Australia has already been seen; it is further discussed below as is relevant research, codes of conduct and legislation in the United States of America, the United Kingdom and Canada.(114)

Decisional capacity is not necessarily an unmodifiable trait.(115) A variety of interventions can enhance understanding of informed consent for research. Capacity may be enhanced by providing information in an easily understandable form. Even among individuals with psychiatric illness or cognitive impairment, deficits in understanding can be remedied with certain educational interventions. Deficits in patients' understanding of informed consent may be related partially to poorly conceived, written, or organized consent materials. These deficits may be remediable with educational interventions. Effective interventions include corrected feedback, multiple learning trials, and more organized or simplified consent forms.(116) For example Jeste and others found that an interactive dialogue between patient and investigator with clarification of key elements in the consent form and repeated presentation of information is likely to aid understanding of disclosed information among patients with schizophrenia.(117)(118)

The wording of questions in the consent process can affect the responses of the participant. For example, in a study of 102 middle-aged and older outpatients with schizophrenia or related psychotic disorders and 20 normal comparison subjects, patients had more difficulty than normal comparison subjects on open-ended questions, including those asking about study procedures, time involved, and potential risks and benefits. Among patients, the enhanced procedure was associated with better performance on questions about potential risks and time required than the routine procedure. It is these “problem areas” in the understanding of informed consent that should be the focus of attempts to improve the consent process for patient participants with severe mental illness.(119)

16.5.2 Advance research directives

Codes of conduct in certain States in America, and in Canada, have proposed that research involving cognitively impaired adults should be restricted to those who have completed a formal, documented research advance directive while competent. (120) Yet, this requirement may impede the carrying out of important research. One study from the United States found that only 11% of adult inpatients had completed a research advance directive, even when given the opportunity to do so in a clinical research setting. Of those who completed research directives, 76% were willing to participate in research that might help them, 49% were willing to participate in research that would not help them and posed minimal risk, and 9% were willing to participate in research that would not help them and posed greater than minimal risk. The authors suggested more flexible approaches to protect these individuals such as:
  1. developing advance directives that address both research and clinical care;
  2. requiring research advance directives for subjects at high risk for losing the ability to consent such as individuals with mild AD enrolling in longitudinal studies; and
  3. developing mechanisms to allow individuals to reject future research participation, while making them aware that formally documenting a preference to decline future research may preclude them from all research include research with the potential to benefit them.(121)
As has already been noted, in Queensland an incapable adult may be included in a clinical trial if they have given a relevant direction in a health care directive.(122) The matter may only be dealt with under that direction. Guardians, attorneys under enduring documents and statutory health attorneys may not override that direction.

Advance Directives that merely nominate proxies (i.e. Proxy Directives) may be a more inclusive option. An example of this in Australia is the medical research power of attorney in the ACT, which dealt with at 16. 3. 4 above. It is considered that the capacity for nominating a proxy for giving consent to research is probably less complex a task than giving consent for research or making a specific advance research directive, and probably retained longer in the course of neurodegenerative diseases such as Alzheimer’s disease.(123)(124)(125) Specifically, over 90% of persons with early Alzheimer's will likely be able to appoint a proxy decision maker for research.(126)

The role of persons responsible and other substitute decision-makers in giving consent for incapable people to take part in clinical trials and the matters they must take into account before giving that consent are discussed above. (127) In Victoria, and the Australian Capital Territory a person responsible must take into account the views of the incapable person if they can be ascertained. (128) If the incapable person has set out those views in an advance directive and wished to take part in clinical trials of the type proposed, then the person responsible would, it is suggested, be obliged to give their consent to the person taking part in the clinical trial.

In New South Wales where a person responsible is being asked to provide the substitute consent for a person to be included in a clinical trial, they must, under the general principles of the Guardianship Act 1987 (NSW) , take the views of the incapable person into account although the welfare and interests of that person must be given paramount consideration.(129) Nevertheless, it is suggested, particularly since the 2009 case Hunter and New England Area Health Service v A , that if a person responsible were faced with an advance research directive as discussed in the last paragraph, they would similarly be obliged to consent to the incapable person taking part in the clinical trial.(130)

As stated above, research already undertaken in the United Kingdom and the United States shows that future research involving incapacitated older patients is likely to be heavy reliant on proxy consent provision.(131) The research also shows a burgeoning interest in, as an alternative to making an advance research directive, appointing a proxy for research consent.(132) It is thought that persons suffering from neurodegenerative disorders such as dementia may retain significant abilities-including sufficient capacity for delegating one's authority for giving consent to research-even if they are not capable of giving independent consent themselves.(133)(134)

As with any situation of proxy consent, in the absence of an advance directive as is often the case, surrogates have to make research decisions based on informal evidence of the person’s preferences.(135) Yet, consent decisions of legal representatives will not necessarily reflect those of patients themselves and may result in under-recruitment of patients, who if given the choice themselves may have chosen to participate. From 2445 potentially eligible but incapacitated patients, proxy consent from a relative resulted in trial participation of only 3.6% patients. The reasons for this were that a large number of incapacitated patients had no relative available for assent (i.e. 2286 out of 2445), but also 45% of relatives approached refused to provide assent compared with 18% of patients who declined participation in the trial. Proxy consent allowed only a small increase in trial recruitment of incapacitated patients. The fact that a greater proportion of relatives than patients refused to provide assent implies that they were more cautious than the patients themselves, or perhaps used different criteria, when making their decision. Conversely, proxies are not able to override the refusal of a cognitively impaired patient to participate in research.(136)

Similarly, Stocking et al interviewed 149 dyads of dementia patients and family proxies about future enrollment in five types of research and while they found that patients chose to cede future decision making to their proxies in 82.9% of the trials, patients ceded decisions to their proxies in 80.7% of those trials about which the dyad had given opposite answers.(137)

Karlawish et al examined the views of Alzheimer’s disease patients and their proxies at 13 research sites in the Unites States and found that proxies made research enrollment decisions based on what they thought would maximize the patient's well-being as opposed to a substituted judgment standard.(138) Reasons proxies give for participating in research include: hope of direct or indirect benefits to the patient, caregiver, or patient's descendants; desperation; trust in the investigator; belief in the goodness of research; and altruism, although these reasons vary according to the type of research such that in drug trials hope of direct benefit prevails while in studies not evaluating a potential therapy more altruistic concerns predominate.(139)

Notes

1 : Peisah C, Vollmer- Conna U, Kim SYH. (2012) Capacity to consent to research Asia-Pacific Psychiatry 4: 219-227.

2 : Muthappan P, Forster H, Wendler D. Research advance directives: protection or obstacle? Am J Psychiatry. 2005 Dec;162(12):2389-91.

3 : British Medical Association and The Law Society, Assessment of Mental Capacity – Guidance for doctors and lawyers, London, BMJ Books, 2nd. Ed. 2004, p. 137.

4 : Applebaum P.S. Roth L.H. Competency to consent to research Arch Gen Psychiatry 1982; 39, 951- 958.

5 : Ibid.

6 : British Medical Association and The Law Society op. cit. (footnote 2) 136.

7 : Ibid., p137.

8 : Lemaire F. The European Directive 2001/20 for clinical research: friend or foe? Intensive Care Med. 2006 32(11):1689-90.

9 : Secretary's Advisory Committee on Human Research Protections. Recommendations from the Subcommittee for the Inclusion of Individuals with Impaired Decision Making in Research (SIIIDR) 2009 Available at http://archive.hhs.gov/ohrp/sachrp/20090715LetterAttach.html.

10 : Ibid.

11 : http://www.mrc.ac.uk/Utilities/Documentrecord/index.htm?d=MRC002409.

12 : Medical Research Council. MRC Guidelines for Good Clinical Practice in Clinical Trials. London: MRC, 1998.

13 : Mason S, Barrow H, Phillips A, Eddison G, Nelson A, Cullum N, Nixon J.Brief report on the experience of using proxy consent for incapacitated adults. J Med Ethics. 2006 32(1):61-2.

14 : http://www.mrc.ac.uk/PolicyGuidance/EthicsAndGovernance/InformedConsent/index.htm#P18_1070.

15 : National Health and Medical Research Council, Australian Research Council Australian Vice- Chancellors’ Committee. National Statement on Ethical Conduct in Human Research, 2007, Australian Government: Canberra., pp 65-66.

16 : Ibid.

17 : http://www.hhs.gov/ohrp/sites/default/files/internationalcomp2016%20.pdf.

18 : Guardianship Act 1987 (NSW) s 33.

19 : Ibid. s 45(3)(c) and (d).

20 : Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Clinical Trials and Guardianship: Maximising the Safeguards, Report No. 13 September 1997.

21 : See Application for approval for adults unable to consent to their own treatment to participate in a clinical trial (ADRENAL Trial) [2015] NSWCATGD 23 in which NCAT took the view that hydrocortisone was not a new or experimental treatment for septic shock at [130]. NCAT dismissed the application on that ground. In Application for approval for adults unable to consent to their own treatment to participate in a clinical trial (TRANSFUSE Trial) [2015] NSWCATGD 18, NCAT took the view that the proposed trial was not a clinical trial for the purposes of the Guardianship Act 1987 (NSW) because, at [45] it noted that the substance being trialed was not a drug and the trial was not a trial of a technique.

22 : Guardianship Act 1987 (NSW) s 45AA(2).

23 : The term “ethics committee” is defined in Guardianship Act 1987 (NSW) s 45AA(5).

24 : Ibid. s 45AA(3).

25 : Ibid. ss 45AA(4) and 45AB(1). The term “person responsible” is defined in s 33A.

26 : For a clinical trial which NCAT approved the trial for the purposes of the Guardianship Act 1987 (NSW) and was initially the substitute consent giver for individual persons taking part in the trial, but subsequently made a potential participant’s person responsible their substitute decision-maker for the decision about inclusion in the trial see, Application for approval for adults unable to consent to their own treatment to participate in a clinical trial (SPICE III Trial) [2014] NSWCATGD 44 and [2015] NSWCATGD 24. For examples of cases in which NCAT approved the clinical trial and then made a potential participant’s person responsible their substitute decision-maker for the decision about inclusion in the trial see, Application for approval for adults unable to consent to their own treatment to participate in a clinical trial (AMOUNT Rehabilitation Trial) [2015] NSWCATGD 1 and Application for approval to conduct clinical trial and for approval for patients unable to consent to their own treatment to participate (GWP42003-P Trial) [2017] NSWCATGD 30.

27 : Ibid. s 45AB(2).

28 : Ibid. s 76A(2A).

29 : Guardianship and Administration Act 2000 (Qld) Schedule 2 s 12.

30 : Ibid. s 72.

31 : Re MP [2007] QGAAT 86.

32 : Ibid. [37]-[39].

33 : Guardianship and Administration Act 2000 (Qld) Schedule 2 s 13.

34 : Ibid. s 66. Who is a statutory health attorney is set out in the Powers of Attorney Act 1998 (Qld) s 63.

35 : Powers of Attorney Act 1998 (Qld) s 63.(2).

36 : Medical Treatment Planning and Decisions Act 2016 (Vic ) ss 72-81.

37 : Ibid. s 3(1).

38 : Ibid. s 3(1).

39 : Ibid. s 75(a).

40 : Ibid. s 75.

41 : Ibid. s 55(1).

42 : Ibid. s 55(2).

43 : (a) the spouse or domestic partner of the person; (b) the primary carer of the person; (c) the first of the following and, if more than one person fits the description in the subparagraph, the oldest of those persons—(i) an adult child of the person; (ii) a parent of the person;(iii) an adult sibling of the person. Ibid. s 55(3).

44 : Ibid. s 75(a)(iii).

45 : Ibid. s 3(1).

46 : Ibid. s 80(1)(a).

47 : Ibid s 80(1)(b).

48 : Ibid s 80(1)(c).

49 : Ibid. s 80(1)(d).

50 : Ibid. s 80(2).

51 : Ibid. s 81(1)(a).

52 : Ibid. s 81(1)(b).

53 : Ibid. s 81(2).

54 : Ibid. s 81(3).

55 : Ibid. s 53(1).

56 : Powers of Attorney Act 2006 (ACT) s 41A.

57 : Ibid. s 12A.

58 : Ibid. s 41A.

59 : Ibid.

60 : Ibid. As at 26 October 2016 no research had been prescribed as medical research.

61 : Ibid.

62 : Ibid.

63 : Ibid. s 12. Note that an example in an Act is part of the Act see, Legislation Act 2001 (ACT), s 126(4).

64 : Ibid. s 41B(1), (2) and (3).

65 : Ibid. s 41B(4) and (6).

66 : Ibid. s 41B(4) and (7) and Guardianship and Management of Property Act 1991 (ACT) s 6.

67 : Ibid. s 41B(5).

68 : Ibid. s 41D(1) and (2)(a) and (b). It should be noted that an independent doctor must assess the likelihood of a principal regaining decision–making capacity within the time mentioned in s 41D(2)(b). That requirement and the matters that the assessing doctor is to take into account are set out in s 41F.

69 : Ibid. s 41D(c).

70 : Ibid. s 41D(3).

71 : Ibid. s 41C(1) and (2).

72 : Ibid. s41C(3).

73 : Ibid. s 74. The following is an interested person in relation to a power of attorney: (a) an attorney; (b) the maker; (c) a relative of the principal; (d) the public advocate; (e) the public trustee and guardian; (f) a guardian of the maker; (g) a manager of the maker; and (h) a person prescribed by regulation. As at 27-10-2016 there were no regulations made under the Powers of Attorney Act 2006 (ACT) in force.

74 : Ibid. s 41G.

75 : Ibid. s 41E.

76 : Legislation Act 2001 (ACT) s 127(1).

77 : Powers of Attorney Act 2006 (ACT) s 41C and see Medical Treatment (Health Directions) Act 2006 (ACT) s 19.

78 : Guardianship and Administration Act 1995 (Tas) ss 36-41, 41(1)(c) in particular.

79 : Peisah C, Vollmer- Conna U, Kim SYH. (2012) Capacity to consent to research Asia-Pacific Psychiatry 4: 219-227.

80 : Kim S.Y.H. (2010) Evaluation of Capacity to Consent to Treatment and Research. Oxford University Press, New York.

81 : British Medical Association and The Law Society op. cit. (footnote 10) 136.

82 : Appelbaum P.S., Roth L.H. (1982) Competency to consent to research. Arch Gen Psychiatry. 39, 951–958.

83 : Resnick B, Gruber –Baldini A.L, Pretzer-Aboff, Galik E Custis Buie V, Russ K, Zimmerman S. (2007) Reliability and validity of the evaluation to sign consent measure The Gerontologist 47, 69-77.

84 : Applebaum P.S. Roth LJ. op cit. (footnote 4).

85 : Kim S.Y.H. (2010) Evaluation of Capacity to Consent to Treatment and Research. Oxford University Press, New York.

86 : Applebaum P.S. Grisso T (2001) The MacArthur Competence Assessment Tool for Clinical Research (Mac CAT-CR) Sarasota Florida: Professional Resource Press.

87 : Karlawish J, Kim SY, Knopman D, van Dyck CH, James BD, Marson D Interpreting the clinical significance of capacity scores for informed consent in Alzheimer disease clinical trials. Am J Geriatr Psychiatry. 2008 Jul;16(7):568-74.

88 : Kim SY, Appelbaum PS, Swan J, Stroup TS, McEvoy JP, Goff DC, Jeste DV, Lamberti JS, Leibovici A, Caine ED. Determining when impairment constitutes incapacity for informed consent in schizophrenia research. Br J Psychiatry. 2007 Jul;191:38-43.

89 : Resnick and others op. cit. (footnote 50).

90 : Saks ER, Dunn LB, Marshall BJ, Nayak GV, Golshan S, Jeste DV.The California Scale of Appreciation: a new instrument to measure the appreciation component of capacity to consent to research. Am J Geriatr Psychiatry. 2002 Mar-Apr;10(2):166-74.

91 : Resnick and others op. cit. (footnote 50).

92 : Ibid.

93 : Palmer BW, Dunn LB, Appelbaum PS, Mudaliar S, Thal L, Henry R, Golshan S, Jeste DV.Assessment of capacity to consent to research among older persons with schizophrenia, Alzheimer disease, or diabetes mellitus: comparison of a 3-item questionnaire with a comprehensive standardized capacity instrument. Arch Gen Psychiatry. 2005; 62(7):726-33.

94 : Kim SY, Caine ED, Currier GW, Leibovici A, Ryan JM Assessing the competence of persons with Alzheimer's disease in providing informed consent for participation in research. Am J Psychiatry. 2001 May;158(5):712-7.

95 : Palmer BW, Jeste DV. Relationship of individual cognitive abilities to specific components of decisional capacity among middle-aged and older patients with schizophrenia. Schizophr Bull. 2006 32(1):98-106.

96 : Karlawish JHT., Knopman D., Clark CM., et al Informed consent for Alzheimer’s disease clinical trials: a survey of clinical investigators. IRB Ethics Human Research 2002; 24: 1-5.

97 : Kim SY, Caine ED, Swan JG, Appelbaum PS. Do clinicians follow a risk-sensitive model of capacity-determination? An experimental video survey. Psychosomatics. 2006 Jul-Aug;47(4):325-9.

98 : Kim S.Y.H., Appelbaum P.S., Kim H.M., et al. (2011) Variability of judgments of capacity: experience of capacity evaluators in a study of research consent capacity. Psychosomatics. 52, 346–353.

99 : Palmer BW, Jeste DV, 2006 op. cit. (footnote 91).

100 : Kim et al., 2006 op. cit. (footnote 93).

101 : Palmer BW, Jeste DV, 2006 op. cit. (footnote 91).

102 : Jeste DV, Depp CA, Palmer BW. Magnitude of impairment in decisional capacity in people with schizophrenia compared to normal subjects: an overview. Schizophr Bull. 2006 ;32(1):121-8.

103 : Buckles V.D. Powlishta K.K., Palmer J.L., Coats M., Hosto T., Buckley A., Morris J.C. Understanding of informed consent by demented individuals Neurology. 2003; 61: 1662- 1666.

104 : Ibid.

105 : Palmer BW, Dunn LB, Depp CA, Eyler LT, Jeste DV.Decisional capacity to consent to research among patients with bipolar disorder: comparison with schizophrenia patients and healthy subjects J Clin Psychiatry. 2007 68(5):689-96.

106 : Jeste DV and others op. cit. (footnote 67).

107 : Palmer BW, Dunn LB, Depp CA, Eyler LT, Jeste DV.Decisional capacity to consent to research among patients with bipolar disorder: comparison with schizophrenia patients and healthy subjects J Clin Psychiatry. 2007 68(5):689-96.

108 : British Medical Association and The Law Society op. cit. (footnote 3) 136.

109 : Katona C., et al WPA Consensus Conference on Ethics and Capacity in older people with mental illness (submitted document).

110 : Ibid.

111 : British Medical Association and The Law Society op. cit. (footnote 3) 136.

112 : Danis M, Wendler D, Kim S. (2015) Acceptable Approaches to Enrolling Adults Who Cannot Consent in More Than Minimal Risk ResearchAm J Bioeth.;15(10):70-1.

113 : Guardianship Act 1987 (NSW) s 45(2)(d). See 16. 3. 1 above.

114 : See 16. 3. 1, 2 and 3 above, as well as 16. 5. 2 and 3, below.

115 : Jeste DV, Dunn LB, Palmer BW, Saks E, Halpain M, Cook A, Appelbaum P, Schneiderman L. A collaborative model for research on decisional capacity and informed consent in older patients with schizophrenia: bioethics unit of a geriatric psychiatry intervention research center.Psychopharmacology (Berl). 2003;171(1):68-74.

116 : Dunn LB, Jeste DV.Enhancing informed consent for research and treatment. Neuropsychopharmacology. 2001; 24(6):595-607.

117 : Jeste DV, Depp CA, Palmer BW. Magnitude of impairment in decisional capacity in people with schizophrenia compared to normal subjects: an overview. Schizophr Bull. 2006 ;32(1):121-8.

118 : Jeste DV, et al op cit., (footnote 79).

119 : Dunn LB, Jeste DV. Problem areas in the understanding of informed consent for research: study of middle-aged and older patients with psychotic disorders. Psychopharmacology (Berl). 2003 171(1):81-85.

120 : Muthappan P, Forster H, Wendler D. Research advance directives: protection or obstacle? Am J Psychiatry. 2005 Dec;162(12):2389-91.

121 : Ibid.

122 : Guardianship and Administration Act 2000 (Qld) s 66(2). See 16. 3. 2. above.

123 : Kim S.Y.H., Appelbaum P.S. (2006) The capacity to appoint a proxy and the possibility of concurrent proxy directives. Behav Sci Law. 24, 469–478.

124 : Kim S.Y.H., Kieburtz K. (2006) Appointing a proxy for research consent after one develops dementia; the need for further study. Neurology. 66, 1298–1299.

125 : Kim S.Y.H., Appelbaum P.S., Kim H.M., et al. (2011) Variability of judgments of capacity: experience of capacity evaluators in a study of research consent capacity. Psychosomatics. 52, 346–353.

126 : Kim SY, Karlawish JH, Kim HM, Wall IF, Bozoki AC, Appelbaum PS. Preservation of the capacity to appoint a proxy decision maker: implications for dementia research. Arch Gen Psychiatry. 2011 Feb; 68(2):214-20.

127 : See 16.3.1.2. and 3. above.

128 : Guardianship and Administration Act 2019 (Vic) s 145 and Medical Treatment Planning and Decisions Act 2016 (Vic) s 77.

129 : Guardianship Act 1987 (NSW) s 4.

130 : [2009] NSWSC 761.

131 : Mason S, Barrow H, Phillips A, Eddison G, Nelson A, Cullum N, Nixon J.Brief report on the experience of using proxy consent for incapacitated adults. J Med Ethics. 2006; (1):61-2.

132 : Stocking CB, Hougham GW, Danner DD, Patterson MB, Whitehouse PJ, Sachs GA. Speaking of research advance directives: planning for future research participation. Neurology. 2006; 66(9):1361-6.

133 : Kim SY Kieburtz K. Neurology Appointing a proxy for research consent after one develops dementia; the need for further study Neurology 66(9): 1298-9.

134 : Kim SY, Appelbaum PS.The capacity to appoint a proxy and the possibility of concurrent proxy directives. Behav Sci Law. 2006;24(4):469-78.

135 : Muthappan and other op. cit. (footnote 84).

136 : Mason and others op. cit. (footnote 91).

137 : Stocking CB, Hougham GW, Danner DD, Patterson MB, Whitehouse PJ, Sachs GA. Speaking of research advance directives: planning for future research participation. Neurology. 2006;66(9):1361-6.

138 : Karlawish J, Kim SY, Knopman D, van Dyck CH, James BD, Marson D.The views of Alzheimer disease patients and their study partners on proxy consent for clinical trial enrollment Am J Geriatr Psychiatry. 2008 16(3):240-7.

139 : Sugarman J, Cain C, Wallace R, Welsh-Bohmer KA.How proxies make decisions about research for patients with Alzheimer's disease. J Am Geriatr Soc. 2001 Aug;49(8):1110-9.

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