TOWARDS A MULTIDISCIPLINARY CONCEPTUALIZATION OF A SPECIFIC CIVIL COMPETENCE

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1 ORIGINAL ARTICLES TOWARDS A MULTIDISCIPLINARY CONCEPTUALIZATION OF A SPECIFIC CIVIL COMPETENCE Laura Ghebaur, Ionuþ Popescu, Carmen Udrea Abstract: The clinical evaluation of psychic capacity of exercise occurs in forensic settings and is based on legal foundations of capacity of exercise and on a specialized mental status examination focused on specific abilities. Clinical judgment is still the gold standard for capacity determination, although it can be unreliable. In this paper we present a prospective study with an older adult population, that consider the cognitive and non-cognitive correlates of capacity of exercise, the relation of -based to clinician based capacity assessment. We have examined 32 subjects with two types of tests: a questionnaire for cognitive profile assessment and a purpose-built capacity assessment tool. We have developed the above mentioned s for the population being assessed. We have considered the relation of decisional abilities from capacity to neuropsychological measures at cognitive test. Expressed as a global score, capacity of exercise correlates most highly with language expression, language comprehension and abstract thinking. According to our empirical model, capacity of exercise can be predicted by the global score of. Capacity is not predicted by diagnostic or functional status alone; the overall severity of cognitive deficits is likely to be correlated with capacity impairment. A purpose-built capacity assessment scale is useful in that it provides an example of how to conceptualize and operationalize the decisional abilities necessary for the specific capacity. Key words: decisional abilities, operational criteria, -based capacity assessment. Rezumat: Evaluarea clinicã a capacitã?ii psihice de exerci?iu se desfã?oarã într-un cadru medico-legal?i se bazeazã pe concep?ia juridicã a capacitã?ii de exerci?iu, precum?i pe o examinare specializatã a statusului mintal, având în centrul aten?iei clinice anumite abilitã?i specifice. Judecata clinicã reprezintã încã standardul de aur pentru determinarea acestei capacitã?i, de?i fidelitatea poate fi micã. În aceastã lucrare prezentãm câteva dintre rezultatele unui studiu experimental prospectiv, analitic, tip caz-control, realizat pe o popula?ie forensicã?intã cu vârsta medie 78 ani, în care am testat semnifica?ia statisticã a asocierii dintre principalele abilitã?i decizionale necesare pentru a întocmi un act juridic civil?i parametrii neuropsihologici ob?inu?i la testarea cognitivã. Mãrimea e?antionului este de 32 persoane, iar cele douã tipuri de teste folosite în evaluare sunt: o scalã de evaluare a competen?ei civile specifice?i un chestionar pentru profilul cognitiv. Cele douã e folosite au fost adaptate popula?iei studiate. Exprimatã sub forma unui scor global, capacitatea psihicã de exerci?iu se coreleazã cel mai puternic cu limbajul receptiv, limbajul expresiv?i gândirea abstractã. Potrivit modelului nostru empiric, capacitatea de exerci?iu poate fi prezisã de scorul ob?inut la scala specificã. Competen?a civilã pe care o evaluãm nu este prezisã numai de diagnostic sau de nivelul func?ional general. Un construit special pentru evaluarea unei competen?e civile specifice este util prin faptul cã oferã un exemplu de conceptualizare?i opera?ionalizare a abilitã?ilor decizionale necesare capacitã?ii de exerci?iu. Cuvinte cheie: abilitãþi decizionale, criterii opera?ionale, evaluare bazatã pe aplicarea unui. INTRODUCTION Capacity to sign juridical civil acts is a legal issue that often requires the expertise, assessment skills and the opinion of mental health professionals. Various researchers have discussed the functional capacities required for different decisional competencies, including elderly persons' competence to make personal care and financial decisions (1, 2). However, to date, there has been little empirical research regarding the functional capacities associated with competence to make a juridical act, and issues such as who should conduct such assessments, how these assessments should be performed and what level of impairment constitutes incapacity remained largely unresolved (3, 4). This lack of consistency presented a major challenge to the authors of this article and further supports the main argument of this paper: a need to systematically review and improve methods of mental capacity assessment. BASIC CONCEPTS OF A SPECIFIC CIVIL COMPETENCE Some studies can offer a theoretical model regarding the types of functional abilities that a researcher might want to assess in the area of civil competence. Investigators identified fourelements that can be operationalized: 1 Corresponding author; psychiatrist, Institute of Legal Medicine Mina Minovici, ªos. Vitan Bîrzeºti 9, sector 4, , Bucharest, Romania, wpa.laura@gmail.com 2 Principal Lecturer, MD, PhD, University of Medicine and Pharmacy Carol Davila, Bucharest. 3 MD Psychiatrist, Clinical Hospital of Psychiatry Prof dr Al. Obregia, Bucharest. Contact carmenbizdoaca@yahoo.com Received December 12, 2011, Revised January 30, 2012, Accepted February 10,

2 Laura Ghebaur, Ionuþ Popescu, Carmen Udrea : Towards A Multidisciplinary Conceptualization Of A Specific Civil Competence communicating a preference, understanding information, appreciating the significance of that information and using the information in a rational manner (5, 6). In the United States, most definitions of incapacity for civil matters include four elements: 1) a disease or disorder, that causes 2) cognitive or psychiatric impairment, that leads to 3) functional (meaning behavioral or decisional) disabilities on a specific task or decision, that exceeds 4) an acceptable risk threshold to the person as weighed by an expert clinician. (7, 8) A prospective assessment of the competence to make a juridical act is particularly desirable when the person exhibits signs of dementia, or has a psychiatric or physical disorder that caused periods of incapacity. A prospective assessment often yields evidence superior to a retrospective assessment of this specific civil competence. During a present-state assessment of mental capacity to dispose of personal assets, the evaluator must make an impartial determination based on the facts at hand (9, 10). The person examined might be making a disposition that many would find odd or unusual, or based on hostility towards one of his natural heirs. So long as the disposition is not based on a delusion, the person should be free to dispose of his or her property in any way that s/he chooses. Assessment methods used to determine capacity have included formal tests, direct observations, behavioral checklists and semistructured interviews. The type of tests used in mental capacity determinations can be subdivided into two main categories: general ability tests and purpose-built capacity assessment tools (11, 12). MATERIAL AND METHOD We have selected an aleatory sample out of a group of persons examined in a certain period of time, by professionals in forensic psychiatry, for assessing mental capacity to sign a juridical civil act. 32 persons were enrolled, with mean age of 78 years. In our empirical model for a decision-making capacity assessment, we used two types of tests: a questionnaire for cognitive profile assessment and a purpose-built capacity assessment tool. The questionnaire comprises items from Clinical Dementia Rating Scale and from Alzheimer's Disease Assessment Scale-Cognitive Subscale. The forensic assessment for a specific civil competence was developed as a semi-structured interview to guide the expert clinician through the evaluation of functional abilities involved in the process of making a decision about distribution of assets. For statistical analysis, we used ² test, Spearman nonparametric correlation and a logistic regression model. OBJECTIVES We have proposed for this analytical cross-sectional study, to test the statistical significance of the association between decisional abilities from capacity and neuropsychological measures at cognitive test, as well as, to test the predictive value of 's total score for physician's clinical judgment. RESULTS The results gathered from the semi-structured evaluation of psychic capacity of exercise have been numerically quantified and assimilated to ranks, the final outcome being considered as a global score; the value of this global score is directly proportional to the degree of cognitive deterioration. Among the tasks assessed through the cognitive profile questionnaire, the features involved in comprehension and fulfilmentof some commands, the capacity to reproduce and learn by memory a sequential fragment of information, arithmetical reckoning abilities and cognitive processing within abstract thinking, proved a statistical significant association with the global score obtained at scale. The highest values for Spearman correlation coefficient were assigned for items assessing the cognitive abilities mentioned above, highlighting the importance of some characteristics of cognitive status in estimating psychic capacity of exercise (table 1). Table 2 shows the correlation and statistical significant association between the most important functional abilities, necessary for making a decision involving personal assets, and general cognitive performance quantified within a score obtained at the cognitive questionnaire.item 14 refers to an established plan for distribution of assets expressed clearly by the person examined. Item 15 assesses if the person can motivate the decision to dispose of his/her property in a certain way. The construct of volitional abilities was conceptualized through item 16 as the evidence that the person formulated a predominant purpose, endorsed a decision and prepared actions in order to achieve the initial reason. P value is < 0,01 and Spearman's correlation coefficient is 0,575. In the cognitive profile questionnaire there is a judgment item with scores from 0 to 2, 0 means that the person did not accomplish the task and score 2 is for best performance. Tasks assessing language comprehension Capacity memorize sequential fragment information to a of Ability calculate to Judgment (Abstract thinking) Global Score at Spearman s 0,801 0,811 0,893 0,83 9 Sig. (2-tailed) 0,000 0,000 0,000 0,00 0 Table 1. Nonparametric correlations (a) 26

3 Romanian Journal of Psychiatry, vol. XIV, No.1, 2012 Global score at the cog. quest. Item 14 Item 15 Item 16 Spearman s rho Global score at the cognitive profile questionnaire Item 14 from Item 15 from Item 16 from 1,000 0,575 0,575 0,575 Sig. (2-tailed) 0,001 0,001 0,001 Sig. (2-tailed) 0,001 0,575 1,00,00,000 Sig. (2-tailed) 0,001 0,575 1,00,00,000 Sig. (2-tailed) 0,001 0,575 1,00,00,000 Table 2. Nonparametric correlations (b) The way the person under examination understands nature and consequences of the juridical th civil act is assessed with the 4 item of. Between this decisional ability and the particular cognitive aspect assessed within item, there is a statistical significant association (p value 0,007) (table 3). th Between the results obtained at the item of the cognitive profile questionnaire (assessing elaboration of a judgment in a common situation) and th those from the 18 item of (assessing if the judgment - upon which the decision to dispose of own assets is based - is realistic and reasonable within personal context) is a statistical significant correlation with p value 0,026 (table 4). For the dependent variable clinical judgment regarding capacity of exercise, we searched evidence for the predictive value of quantitative semi-structured approach of this specific civil competence. According to our model, total score obtained from assessing functional decisional abilities comprising capacity of exercise, can be considered as a predictive factor for the forensic examiner's final decision (table 5 and table 6). DISCUSSION While some specific neuropsychological tests are statistically significant predictors of variance in certain decisional abilities, the relationships of scores on capacity s to neuropsychological performance variables vary according to population, the neuropsychological battery employed, and used. Given these differences, it is difficult to compare findings across studies (13, 14, 15). In some studies, the construct of understanding appears to have the most robust relationship to neuropsychological test performance, whereas appreciation is least strongly related to neuropsychological test performance. It is worth noting that, while cognitive screening tests are correlated with capacity impairments, they are not sensitive or specific (16). The relationship of specific psychiatric symptoms and individual decisional ability deficits has not been well studied and deserves further attention. As a broad generalization, it appears that greater overall severity of clinical deficits is associated with more decisional ability impairment. Some studies suggest that socioeconomic status and education affect capacity scores. These associations are problematic; an should measure capacity with fairness, regardless of income or education, because otherwise it is likely to inject a source of bias into the assessment that may undermine the integrity of the assessment process (, 18, 19).Another challenge confronting researchers in the field of capacity research is the lack of a clear consensus regarding the conceptualization and operationalization of decisional constructs. 27

4 Laura Ghebaur, Ionuþ Popescu, Carmen Udrea : Towards A Multidisciplinary Conceptualization Of A Specific Civil Competence Item 4 from Total Item from the cognitive profile questionnaire (judgment) 0 Count % 60% 100% 1 Count 0 2 Count 2 12 Total Count ,5% 87,5% 100% Value df Asympt. Sig. (2-sided) Pearson Chi-Square 10, ,007 Table 3. Crosstab (a) Item 18 from Total Item from the cognitive profile questio nnaire (judgment) 0 Count % 70% 100% 1 Count 0 2 Count 2 12 Total Count ,4% 90,6 % 100% Value df Asympt. Sig. (2-sided) Pearson Chi-Square 7, ,026 Table 4.Crosstab (b) 28

5 Romanian Journal of Psychiatry, vol. XIV, No.1, 2012 Predicted Clinical judgment about capacity of exercise Percentage Correct Step 1 Observed Clinical judgment about capacity of exercise , ,5 Overall Percentage 98,6 Table 5. Classification table for the logistic regression model B S.E. Wald df Sig. Exp (B) Clinical judgment about capacity Step 1 Global scorecapacity scale 0,639 0,143 20,01 0,00,895 0,004 0,001 Constant -10,196 2,546 16, ,000 0, Table 6.Variables in the equation Limited studies of construct validity indicate that there may be some consensus on the assessment of understanding, associated with lexical knowledge and verbal memory, but no clear consensus on how to conceptualize or operationalize the concepts of reasoning and appreciation (20).The lack of a real gold standard for capacity assessment hampers the establishment of valid assessment s. Some individuals may appear to have diminished capacity due to decisionmaking styles that defer to the recommendations or concerns of significant others. The complex role of individual differences in decision-making and a lack of consensus regarding whether and how to incorporate these in capacity evaluations, may explain some of the low reliability of capacity determinations. Capacity evaluation should consider the age-appropriateness of, and cultural background for, decision-making styles (21, 22). An awareness of the subtle and complex factors that influence decisions about how to convey property in unimpaired adults has implications for how we conceptualize and craft s designed to improve the assessment of decision-making regarding capacity of exercise in cognitively impaired patients. Unfortunately, normative studies of capacity assessment are limited. We do not yet know enough about how variables such as values, beliefs, experience, ethnicity, procedural variables and processing styles impact capacity assessment, and what constitutes normal variability in decision-making styles as it relates to this capacity. CONCLUSIONS The key recommendation from this paper is that mental capacity assessments in forensic settings should follow a two-stage process, incorporating assessment of general cognitive process, which in most cases would involve neuropsychological testing, as well as assessment of knowledge specific to the type of capacity being assessed. The empirical foundations of capacity of exercise can be improved by studies that investigate the construct validity of s and the test-retest, interrater and internal consistency reliability of based assessments. In considering cognitive predictors of capacity, it will be helpful to utilize broad neuropsychological batteries and multivariate approaches. Other important goals for research are to define better the relation between -based and clinical assessment, and to compare the correspondence of clinical judgments made by different physicians. REFERENCES 1.Recupero PR, Price M. Civil litigation. In: Buchanon A, Norko MA (eds). The Psychiatric Report-Principles and Practice of Forensic Writing. New York: Cambridge University Press, 2011, Appelbaum P, Grisso T. MacArthur competence assessment tool for clinical research (MacCAT-CR). Sarasota, FL: Professional Research Press/Professional Resource Exchange, Anderer SJ. A model for determining competency in guardianship proceedings. Ment Phys Disabil Law Rep 1990;14(2): Roth LH, Meisel CA, Lidz CA. Tests of competency to consent to treatment. Canadian Journal of Psychiatry 1997;134: Appelbaum PS, Grisso T. Assessing patients' capacities to consent to treatment. New England Journal of Medicine 1988;319: Sabatino CP, Basinger SL. Competency: Reforming our legal fictions. Journal of Mental Health and Aging 2000; 6:

6 Laura Ghebaur, Ionuþ Popescu, Carmen Udrea : Towards A Multidisciplinary Conceptualization Of A Specific Civil Competence 7.Moye J, Gurrera RJ, Karel MJ, Edelstein B, O'Connell C. Empirical advances in the assessment of to consent to medical treatment: Clinical implications and research needs. Clinical Psychology Review 2006;26: Grisso T. Evaluating competences. 2nd ed. New York: Plenum, Bartol CR, Bartol AM. Introduction to forensic psychology. Thousand Oaks: Sage Publications Inc, Melton GB, Petrila J, Poythress NG, Slobogin C. Psychological evaluations for the courts. New York: Guilford Press, Sullivan K. Neuropsychological Assessment of Mental Capacity. Neuropsychology Review 2004;14(3): Marson DC, Earnst K, Jamil F, Bartolucci A, Harell LE. Consistency of physicians' legal standard and personal judgments of competency in patients with Alzheimer's disease. Journal of the American Geriatrics Society 2000;3: Moye J. Assessment of competency and decision making capacity. In: Lichtenberg P (editor). Handbook of assessment in clinical gerontology. New York: Wiley, Moye J, Karel M. Evaluating decisional capacities in older adults: Results of two clinical studies. Advances in Medical Psychology 1999;10: Moye J, Karel MJ, Azar AR, Gurrera RJ. Hopes and cautions for -based evaluations of consent capacity: Results of a construct validity study of three s. Ethics, Law and Aging Review 2004;10: Fazel S, Hope T, Jacoby R. Assessment of competence to complete advance directives: Validation of a pacient centred approach. British Medical Journal. 1999;318(7182): Grisso T. Clinical assessment for legal competency of older adults. In: Storandt M, VandenBos GR (eds.). Neuropsychological Assessment of Dementia and Depression in Older Adults: A Clinician's Guide. Washington DC: American Psychological Association, 1994, Heinik J, Werner P, Lin R. How do cognitively impaired elderly patients define testament : Reliability and validity of the testament definition scale. Isr J Psychiatry Relat Sci 1999;36(1): Landry LY. Normativity, guardianship and the elderly. Some lessons from Canadian legislation. Theor Med Bioeth 1999;20(1): Miller SS, Marin DB. Assessing capacity. Emerg Med Clin N Am 2000;18(2): Schumand B, Gouwenberg B, Smitt JH, Jonker C. Assessment of mental competency in community-dwelling elderly. Alzheimer Dis Assoc Disord 1999;13(2): Silberfeld M, Checkland D. Faulty judgment, expert opinion and decision-making capacity. Theor Med Bioeth 1999;20(4): *** 30

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