Litigation and the Aging Population
As the elder
population continues to grow, local, national, and international
changes are occurring in criminal and civil litigation. It is more
important than ever that attorneys have a practical and reliable way to
understand mental
capacity and its assessment.
This
page contains information regarding mental capacity and competency assessment, the issue of tests
of cognitive impairment,
a review of dementia,
and an introduction to the PARADISE-2
Protocol
Click here for a copy of
PARADISE-2
Click here for definitions of
common medical terms
Mental
Capacity and Competency
Competency is a legal
term, defined as: "duly qualified: having sufficient capacity,
ability, or authority" [Black's
Law Dictionary].
Mental
capacity is a functional term that may be defined as: the
"mental (or cognitive) ability to understand the nature and
effects of one's acts."
There are many ways to
assess mental capacity. Three
common models are the philosophical/legal, medical, and functional
models. Each has significant benefits and
limitations. PARADISE-2, a
behavior-based protocol, maximizes
the strengths of previous models, while minimizing
their limitations. Designed for potential litigation
settings, PARADISE-2 is used by
attorneys, law enforcement, social service personnel, physicians, and
nurses in many parts of the Western Hemisphere. PARADISE-2
was used by the United Nation's International Criminal Tribunal for
the former Yugoslavia ("ICTY") in the war-crimes trial of Gen.
Pavle Strugar - the first trial of its kind since the
Nuremberg Trials. Due, in part, to PARADISE-2,
the Tribunal created new international legal precedent
affecting all future war-crime tribunals. (For
more information about PARADISE-2, click
here).
Specific
competence,
such as the competence
to create a Will ("testamentary capacity"),
enter into a contract ("contractual capacity"),
or make a gift ("donative capacity"), is often at issue In
litigation involving the elderly.
IMPORTANT: Emotions, such
as anxiety, depression, or mania can affect a person's ability
to listen, understand, and remember new information.
For more information
about mental capacity models, or other aspects of
mental capacity and competency, please see Kaplan and Sadock's
Comprehensive Textbook of Psychiatry - 8th Edition, pp. 3797-3806, or contact
us in our Arizona or California offices.
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Dementia
The term "dementia" is often
confusing to people outside the medical and psychological
professions. "Dementia" is a syndrome in which a person has
impaired memory, plus at least one of the following: problems in
executive functions (thinking abstractly, planning, monitoring
behavior, appropriately starting or stopping behavior, switching focus,
considering consequences); inability to recognize people or objects;
inability to use language appropriately; or, inability to perform over
learned tasks, such as brushing one's teeth. Dementia is not
a disease itself, but rather a group of symptoms which may accompany
certain diseases or physical conditions.
The most common cause of
dementia is Alzheimer's disease. This progressive and
insidious disease often starts with short-term memory impairment, and
may also include impairment in the ability to recall faces, shapes and
distances, and/or the sequence of events. This disease is not
curable, but early treatment may slow the progression of cognitive
losses.
The second most common
cause of dementia is vascular disease. This is a condition in
which blood flow in the brain is impaired because the blood vessels
become "clogged" or damaged (example - a stroke). This is not
the same as Alzheimer's disease; however, here too, the afflicted
person becomes progressively worse, and ultimately become incapable of
caring for himself.
Alzheimer's disease and
vascular disease account for more than 85% of all dementias.
The remaining dementias may be caused by treatable conditions, such as
depression, certain nutritional deficiencies, and some endocrine
disorders. In these cases, the cognitive problems may resolve
when the underlying medical issue is addressed.
Click here for more common
medical terms
PARADISE-2 Protocol
The PARADISE-2 protocol for
mental capacity assessment uses information derived from observed
behaviors to pinpoint areas of cognitive impairment. There
are several benefits to this approach:
-
This method clarifies complex situations, thereby helping attorneys
create a compelling image of the person for the jury and/or judge.
-
The method is easy to use. Much of the necessary data comes
from information that an attorney would obtain during typical case
investigation. The method's power is in how that information
is organized.
-
Relative degree of impairment is assessed - meaning PARADISE-2 is
useful in many situations besides "competency" assessments.
PARADISE-2 has proven itself useful across a spectrum of civil and
criminal litigation matters.
Note:
The method may be used by people who are not mental
health professionals. Although the sophistication of the
analysis will vary, PARADISE-2 has been, and continues to be
effectively used by attorneys, law enforcement, and social service
personnel. In fact, the protocol was designed
to be used by attorneys in litigation settings.
PARADISE-2
uses common, everyday language. However, if medical/mental
health expertise is needed, the information from PARADISE-2
immediately directs attention to the pertinent cognitive functions
and brain physiology that needs to be examined.
PARADISE-2
has been extensively peer-reviewed and, like the IDEAL protocol, is
used internationally.
Details
about PARADISE-2 may be found in Kaplan and Sadock's
Comprehensive Textbook of Psychiatry - 8th Edition, pp. 3798-3799.
Click here for a copy of
PARADISE-2
Tests
of Cognitive Impairment
Although attorneys must often
assess a client’s mental capacity, lawyers generally should
not use the formal, clinical tests employed by medical and
mental health professionals. Most attorneys lack
the training to know the limitations of the tests, such as validity and
reliability issues (ex. many tests are not standardized for use in
geriatric populations), or associated problem of the extent of false
positive and false negative results. Further, most tests do
not provide results that are specific to the issues of legal
incapacity; therefore reasonable questions may be raised as to whether
the attorney had the requisite knowledge to make appropriate
conclusions based upon test results. Finally, the results of
psychological tests must be compared to the person's behavior in order
to confirm the validity of the findings.
For these reasons, lawyers are encouraged to use PARADISE-2 - a
behavior-based protocol for assessing cognitive abilities that was designed
to be used by attorneys in litigation settings (for more information, click here).
With regard to the Mini-Mental State Examination or "Folstein"
examination: The Folstein (AKA "MMSE") should never be the
sole method of assessing mental capacity. According to its
creator, the test was not designed to evaluate "executive functions" -
i.e., those abilities involved in considering options and likely
consequences, planning, initiating, monitoring, and appropriately
stopping behavior. In fact, Dr. Folstein and his group
published an article in which they showed that slightly fewer than 40%
of people - otherwise determined to be incompetent - scored well on the
test. The failure was due to this very issue.
A low score must also be doubted, because several social, medical, and
psychological conditions may produce an artificially low
score. If the test is used, the results should be compared to
behavioral observations.
The MMSE does not assess the issue of undue influence or the degree of
susceptibility to such manipulation/coercion.
Contact us
for more information.
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Click here for more
information about tests and common medical terms
