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Civil Law

Psychiatrists and other mental health specialists are often required to conduct assessments with a view to determine the presence of mental or emotional problems in one of the parties.

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These types of assessments are needed in multiple situations, ranging from examinations to specify the impact of injuries on a third party involved in a motor vehicle accident, to evaluations of the capacity to write a will or to enter into contracts, to psychological autopsies in order to assess testamentary capacity in suicidal cases or sudden death, or evaluations for fitness to work and, of late in many countries, evaluations to determine access to benefits contemplated in disability insurance.

In most of these situations, the issue at hand is a determination of capacity and competence to perform some function, or the evaluation of autonomous decision making by impaired persons. A determination of incapacity leading to a finding of incompetence becomes a matter of social control that is used to legitimize the application of social strictures on a particular individual. This imposes on clinicians an increased ethical duty to make sure that their decisions have been thoroughly based on the best available clinical evidence.

Ordinarily, there is a presumption of capacity and, hence, that a particular person is competent. A person is assumed to be competent to make decisions unless proven otherwise. The presence of a major mental or physical condition does not in and of itself produce incapacity in general or for specific functions. In addition, despite the presence of a condition that may affect capacity, a person may still be competent to carry out some functions, mostly because the capacity may fluctuate from time to time, and because competence is not an all or none concept, but it is tied to the specific decision or function to be accomplished.

In addition, a finding of incapacity should be time-limited; that is, it will have to be reviewed from time to time. For example, a stroke may have rendered a person incapacitated to drive a motor vehicle and hence the person will be deemed incompetent to drive, but the person could still have the capacity and be competent to enter into contracts or to manage personal financial affairs. With time and proper rehabilitation, the person may be able to regain capacity and competence to drive.

Ordinarily, a person has to consent to an assessment of incapacity or a legal order has to be obtained to make the person cooperate to the assessment or to proceed to collect information otherwise. It is advisable to use a screening test of capacity and to do a full assessment only if the person fails the screening test. This will prevent imposing an onerous burden on the person subject of the assessment if the screening test is easily passed.

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