2008 issue 2

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Volume 17, issue 2

Practical hints

A critical look at the alternative appointment of a “forensic psychiatrist or neurologist”

Danuta Hajdukiewicz1
1. Klinika Psychiatrii Sądowej Instytutu Psychiatrii i Neurologii w Warszawie
Postępy Psychiatrii i Neurologii 2008; 17 (2): 157-160
Keywords: legal incapacity, forensic physicians

Abstract

Objective. This article informs psychiatrists, neurologists and psychologists about the new legal regulations concerning appointment of forensic experts in legal incapacitation cases and draws the legislators' attention to the fact that alternative appointment of „a forensic psychiatrist or neurologist" is wrong because of the very different competencies of these two specialists.
Review. Earlier legislation obligated courts conducting legal incapacitation cases to refer the examinee for assessment by one or more forensic psychiatrists. This formulation left no doubt that art. 554 § 1 of the civil code (c.c.) meant that the court thought it essential to submit the person to observation at hospital „ on the basis of the opinion of two forensic physicians " and that these physicians were to be forensic psychiatrists. Their duty was (and still is) to assess whether the examinee „was incapable of managing his/her conduct due to mental illness, mental underdevelopment, or other type of mental disorder, and especially alcohol or drug dependence " (art. 13 c.c.) or, for the above reasons, „ needed help to conduct the case" (art. 16 c.c.). All these assessments are within the competencies of the forensic psychiatrist. Now „the person whom the motion to incapacitate concerns, must be examined by a forensic psychiatrist or neurologist, and also a psychologist (art. 553 § 1 c.c.) and § 2 specifies the range of assessments which the forensic opinion must contain. The failure to specify the specialities of the two forensic physicians (on the basis of whose opinions the court shall assess the necessity of observation) is causing doubts as to the specialities of the forensic physicians (the popular opinion among legislators is that only forensic psychiatrists can assess the need for observation).
Conclusions. (1) The chapter entitled „Legal incapacitation " (art. 544-560 c.c.) needs to be amended immediately and the competencies of forensic physicians must be limited to psychiatrists. (2) It would be advisable to return to the former content of art. 553 § 1 c.c. (3) In art. 554 § 1 c.c. it would be advisable to make it clear that the court shall assess the need to submit the examinee to observation in hospital on the basis of the opinions of two forensic psychiatrists.

Address for correspondence:
Dr Danuta Hajdukiewicz
Klinika Psychiatrii Sądowej Instytut Psychiatrii i Neurologii
Al. Sobieskiego 9, 02-957 Warszawa