For many the years the ParliamentaryAssembly and the Expert Committee for Bioethicsof the Council of Europe have been analyzing the problems facing humanity due to progress in themedical and biological sciences. In the wake of theseanalyses the European Human Rights and BiomedicineConvention was accepted in 1997 and thenratified by many countries. Despite the appeals of theHigh Medical Council Poland has still not ratifiedthis Convention. The authors present the Convention.
Investigations in to compliance withthe Mental Health Act, and particularly its regulationsconcerning voluntary and dubious commitmentto psychiatric hospitalisation, have led to the following conclusions: (1) a considerable portionof patients with a formal status of voluntary commitmentdo not identify with this status at the subjectivelevel; (2) observance of article 19, section1, point 3 of the Mental Health Care InstitutionsAct and article 32 section 1 of the Medical ProfessionAct with respect to mentally ill patients voluntarycommitted to psychiatric hospital is highlyunsatisfactory; (3) the source of the considerablediscrepancy between voluntary and dubious commitmentof the mentally disturbed to psychiatric hospital lies both in lack of observance of legalregulations and lack of generally accepted criteriaand methods of assessment of patients' decisionswith respect to voluntary commitment.
The author discusses the position andsignificance of the expert psychiatrist's evidencevis-a-vis other evidence, the nature and form of the forensic psychiatrist's evidence, demands with respectto the contents of the expert opinion, the expert psychiatrist'spart in the civil proceedings and the principlesunderlying the court's assessment of the expert.
In the Lithuanian civil code the individual's legal capacity or incapacity is assessedin the following situations: full civil legal capacity,limited civil legal capacity, capacity to participatein lawsuit proceedings, temporary legal incapacity,exceptional legal incapacity (capacity) and age-determined legal incapacity. The number of forensicpsychiatric examinations in Lithuania is increasing,mainly in civil testamentary lawsuits –from 143 in 1989 to 306 in 1997. One of thereasons for this increase is the introduction of newlegal regulations, e.g., with respect to the right toprivate ownership.
The authors discuss current problemsin forensic psychiatry in Ukrainian civil law.They present the forensic psychiatrist's overall positionin the civil lawsuit and analyze the differentcategories of psychiatric opinions. They point outthe need for several modifications in the civil codewhich would ensure greater protection of the rightsof the mentally disturbed. Finally they discuss theneed to support civil expert opinions with psychologicalexamination.
The author analysed28 forensic psychiatric opinions issued in civil lawsuits (24 testamentary,2 divorce and 2 claims for damages),preparedby a group offorensic psychiatrists at theForensic Psychiatry Clinic within the last five years.She found that slightly less than one third of theopinions were commissioned directly due to the need for a group opinion, severity of the case or anticipateddifficulties, more than one third were commissioneddue to one of the party's dissatisfaction withthe conclusions drawn from previous opinions andalmost one third were commissioned due to inconsistenciesof diagnosis or assessment of testamentarycapacity on the basis of earlier opinions. In severalcases the experts were criticizedfor one of the followingreasons: jailing to justify their conclusions,offering too terse justification, ignorance of the specific nature of the preparation of ex pert opinions incivillawsuits or transgression of competence.
The methods and principles of reconstructionand evaluation of the testator's state of mind for the sake of the preparation of a methodologicallyvalid forensic psychiatric opinion are presentedand discussed. The feasibility of co-operationwith experts representing other disciplines, includingcriminologist graphologists, when assessing testamentaryvalidity, is also discussed. The expert opinion inthe testamentary lawsuit should include an assessmentof the testator's state of mind as well as his/hercapacity and competency to produce his/her last will.
The majority of writers publishingin the legalliterature agree that a testament (lastwill) is a specific, unilateral and retractable legalact or simply a unilateral and retractable statementof will which comes into effect upon the deathof the testator. According to Polish civil law,art. 945 par. 1 of the civil code, a testament is invalidif it was produced (1) in a condition precludinginformed or free decision and expression of will, (2) as a result of a misconception justifyingthe suspicion that, had he/she not acted under theinfluence of this misconception, the testator wouldnot have produced a testament of such content,(3) in response to threat. If the testator is deadand members of the family go to court seeking invalidationof the will on the grounds of one of thesecircumstances, the court appoints one or more forensicpsychiatrists and psychologists and requeststheir expert opinion. Generally speaking, the psychologist'stask is to reconstruct the testator'sstate of mind when producing the will so that thecourt may, on the basis thereof, refute or confirmthe suitor's objections. A methodological model of the psychologist's ex post facto diagnostic proceedingsis presented. The psychologists draws his data from the court documentation (witnesses' evidence,significant medical documentation etc.) and, ifnecessary, he also interviews significant persons(on the court's permission).
The contribution of psychologicaland psychological factors to testators' capacity toexpress their will and take free and informed decisionsis analysed on the basis of 20 forensic psychiatric opinions. Psychotic processes were themost frequent reason for incapacity and specialistmedical documentation was the decisive factor inthe reconstruction of deceased testators' mentalcondition.
The author discusses the problemsconfronted by psychiatrists when evaluating doctors' and nurses' evidence in testamentary lawsuits.
The legitimateness, purpose andscope of the forensic psychological opinion in civillawsuits concerning validity of statement of will,including validity of wills, are analysed. Theauthors compare the criteria for mental capacity for informed and free taking and expression of will, laid out in appropriate acts of parliament,with the criteria adopted in such cases by forensicpsychiatrists and they analyse the possible role of psychological expertise in the indication of suchcriteria, their definition and negotiation betweenthe court and experts called in to evaluate the testator's mental condition.
The authors explain the position of the expert psychologist in civil legal proceedings.They focus on assessment of the elderly. Theypresent the most frequently used methods and analysethe shortcomings of psychological methodology.Psychological assessment is an auxiliary deviceand hence the substantial reasons for appointing anex pert psychologist in testamentary cases have notbeen clearly articulated.
The authors present two cases oftestatrixes expressing their last will. They drawattention to the following important factors whichexperts may find helpful in diagnosing the testator'smental condition: cognitive efficiency, absenceof disturbed mental activity, absence of deliberatedeception. Experts should submit witnesses' assessments of the testator's mental condition tocautious scrutiny, appeal to their reflection, confrontinformation on the testator with other data,including medical documentation, providing insightinto factors which could potentially have affectedhis/her behaviour and last will.
The article discusses withdrawal from the paternalistic model in favour of respect for patients' informed consent to medical intervention in Polish medical legislation. Various opinions concerning decisional competence as a threshold element of informed consent are discussed. The criteria and demands of competence in Polish medical law are presented and attention is paid to existing shortcomings. Special emphasis is put on the need to solve the problem of how to assess competence in mentally disturbed individuals in medical and legal procedures.
The author analyses 941 court proceedingsinvolving involuntary commitment to theAdrianDemianowskiPsychiatric Hospital in Wrocławin 1995-1996. He found that 123 patients(13.1%) had been hospitalised after they hadwithdrawn consent (usually within 48 hours)whereas in a further 206 cases (22% of all casessubmitted to court) capacity to give voluntary consentfor hospitalisation was questioned. In 31 cases(3.3%) court proceedings were initiated only becausethere was no other way of hospitalising individualslacking the competence to express consent.The author believes that the present findingscorroborate earlier observations that the MentalHealth Act and other legal regulations lack appropriateprocedures for admission to psychiatric hospital of individuals who are incompetent yetlegally capable and for the isolation of these individualsfrom individuals who are competent ofexpressing consent but are involuntarily committedfor legal reasons.
Admission of patients to top security forensic psychiatric institutions began in 1999.This has created the opportunity for significantlyimproved security of the execution of safetymeasures but it has also raised the risk of unjustifiedlimitation of freedom of detained patients. Iftop security institutions are to be used properlya special psychiatric commission for the qualificationof inmates and their prompt discharge to lessrestrictive institutions if necessary is urgentlyneeded. Such a commission would greatly improvesecurity and would also protect the patient's rightto be treated in as nonrestrictive conditions aspossible.
Part of the evidence which comes tothe attention of the forensic psychiatrist is of dubiouscredibility. When faced with conflicting evidencethe forensic psychiatrist often feels the urgeto test its credibility. By seeking analogies withprocedures for giving expert opinions in "civil"lawsuits, the author lists the legislative sources andcommentaries which clearly imply that only thecourt has the power to question the value of evidenceeven if this is a significant problem for theforensic psychiatrist.
A medical experiment is any manipulationor trial conducted on a human being withthe purpose or sole purpose of expanding medicalknowledge. The authors analyseselected aspects of medical experiments in the context of the recommendationsof the Council of Europe and legalprinciples.
Before the doctor can take any actionhe needs to have the patient's consent. Article15 of the Medical Ethics Code states that "thedoctor must secure the patient's consent before takingany diagnostic, treatment or preventive action".The doctor who fails to obtain such consent runs therisk of being sued. The authors discuss the definitionof informed consent and its various aspects.
The author discusses the problem ofpatients' informed and competent consent in thecontext of the interviewer-interviewee relationship.She points out several unintended effects of interviewerand interviewee bias on expression of consentas well as the "traps" involved in the clinicalinterview in which the interviewee's competency toexpress consent is assessed.
The author presents the new regulationsof the 1983 canon law code. He discusses themost important canons concerning the conditions for valid marriage (canon 1057) and marital incapacity(canon 1095). He quotes data showing howsome church tribunals in Poland have changed their sentences as a result of implementation of thenew regulations of the canon law code. In the context of these new regulations he discusses the objectand limits of opinions offorensic psychiatristsand psychologists, their competencies and theevidential significance offorensic psychiatrists' and psychologists' opinions.
Each of these legal actions necessitates external expression in the form of an appropriateoral or written statement. Despite this similarity,however, each is legally unique in that it placesdifferent demands on the mental capacity of the person performing the legal action in question.
The authors present several new regulationsincluded in the 1983 canon law code dealingwith the legal and mental prerequisites forvalid or invalid marriage (canon 1057). They alsodiscuss the psychological aspects of marital capacitylaid out in canon 1095. They point out severalreasons underlying mental incapacity for performingsignificant marital duties: sexually-related personalitydisorders which preclude the exclusivenessand natural consumption of the marital agreementand non-sexual personality disorders which precludeadequate interpersonal relations.
The authors discuss the significanceof various reasons for marital incapacity and theassumption of important marital duties. In addition to the reasons for incapacity listed in thecanon law code they discuss incapacity due to mentaldisorders. Although only canon 1095 no. 3 definesthe general reasons which may lead to legalincapacity, the types of incapacity listed in pointsl and 2 of this canon have legal consequences,whatever their causes may be. Possibly not all reasonsand not all types of incapacity have been elaborated–some are dubious or simply not discussed.Even notable canonical lawyers tend to interpret"the concept of psychic reasons" very broadly, i.e.,to include all departures from normal psychologicalcondition. This means that in court proceedingsit is not necessary to put great emphasis on thenature of the reason for incapacity according tocanon 1095 pt. 2, it is enough to indicate the existenceof such a reason and identify it for it to becredible. Disorders and deviations do not automaticallylead to incapacity. Every case must be analysedindividually. The presented case illustratesthe diversity of judges' approaches to the evidence.
The authors compared handwritingof schizophrenic patients in remission with the handwritingof actively schizophrenic patients andhealthy controls. No typical graphic patterns couldbe identified for schizophrenic patients in remission.
No satisfactory attempt has yet been made in Polish psychiatric and forensic literatureto give a precise description or psychopathologicalcharacteristic of one of the legallysignificant elements of faulty expression of will,i.e., lack of freedom of will. The authors discussthe problem in the context of their own knowledgeof and experience with civil law. In their opinion,deficient freedom of will, or even its directionaldisconnection, in the forensic psychiatric sense, isdetermined by such morbid psychomotor drive conditionsas apathy with adynamia and abulia,negativism or heightened susceptibility to suggestionwhich accompanies drive and criticism disorders.In mental disorders, on the other hand, particularlythe schizophrenias, deficient freedom ofwill is caused by both negative and positive (productive)symptoms; the former may limit the dynamicsof the volitional process whereas the lattermay deform it specifically and pathoplastically.
In forensic-psychiatric practice arteriosclerosisis often prematurely identified withone of its serious but nor always present complications, i.e., atherosclerotic dementia. Within the framework of the contemporary understanding of atherosclerosis the authors argue that not everylocalisation of pathognomic morbid change and notevery level of advancement of the atheroscleroticprocess is significant from the forensic psychiatric point of view. They point out that dynamic psychiatric consequences are typically preceded, oftenby many years, by internal and neurological symptomswhich are difficult to ignore. The authors goon to discuss the negative effects of different typesand degrees of atherosclerotic dementia on errorsin expression of will and on volitional process – from volitional act to its externalisation (expression).