[Expanded criteria for assessment of legal competence and testifying capacity in borderline cases of organic brain syndromes--an important field for cooperation between medicine and law].
The three well-known criteria for legal competence and testamentary capacity, that is: consideration, awareness and the ability to express oneself in writing and speaking, ought to be extended by three further dimensions, namely: motivation, long-term intentions, gestures. This demands increased specialised competence and increased time, but seems indispensable in order to meet the postulate of human ethics: to give the patient the optimum support for a sensible realisation of will. This equally applies to medical experts and jurists (especially notaries and lawyers). The related demand to give increased time and attention to a patient, often in the form of repeated observation over several days, with detailed written documentation, shows that it is not at all a weakening, which is supported, but rather a more precise formation of concept. In this sense, we expect to meet better the demand of the best possible "objectivity" in evaluation, rather than within a merely schematic, single, short-time assessment. We substantiate this with several examples, taken from various areas, namely: in isolated aphasic/agraphic disorders, testamentary capacity and even legal competence can be retained according to the above criteria (despite the inability to write and speak). In analogy, also "last minute" decisions of the incurably sick person must be taken into account. We also show, however, that an assertion of legal competence (unrestricted ability to reach a decision) based on merely formalistic guide-lines, without taking into account long-term intentions and motivation, might seriously harm a patient. There is the case of a post-apoplexy patient who demanded immediate discharge to return home. This patient proved fully aware in classical questions of reference, but, due to homesickness, post-apoplectic syndrome and senile stubbornness, failed to take into account her inability to walk and incontinence. A consolidated discharge, however, was very well possible several weeks later. At an earlier stage this would have led to disaster. There will always remain a zone in which it is not possible to reach clear expert decisions either pro or contra but by incorporating the criteria above quoted, it will be possible to considerably narrow this zone. This corresponds to an evaluation process, which cultivates both optimum objectivity and optimum fairness.
Barolin
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GS
Ludwig Boltzmann Institut für Neuro-Rehabilitation und -prophylaxe, Gallmiststrasse 29, A-6800 Feldkirch.
Welte
R
R
D000328:Adult; D000368:Aged; D001317:Austria; D005104:Expert Testimony / Q000331:legislation & jurisprudence / Q000592:standards*; D005260:Female; D005555:Forensic Psychiatry / Q000592:standards; D005868:Gestures; D006801:Humans; D007258:Informed Consent / Q000331:legislation & jurisprudence*; D007398:Interpersonal Relations; D007883:Legislation, Medical / Q000592:standards*; D008297:Male; D016743:Mental Competency; D008875:Middle Aged; D009042:Motivation; D019965:Neurocognitive Disorders / Q000175:diagnosis* / Q000523:psychology*
Erweiterte Beurteilungsmöglichkeiten in den Grenzgebieten der Testier- und Geschäftsfähigkeit bei organischen Psychosyndromen--ein wichtiges Zusammenarbeitsgebiet von Medizin und Jurisprudenz.