Competency to Make a Will
Sir: I would like to present two thoughts that might be helpful to psychiatrists
who are asked to perform a forensic consultation to assess competency
to make a will [1]:
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It has been my experience that, according to the American Association
of Psychiatry and the Law, Ethical Guidelines, "A treating
psychiatrist should generally avoid agreeing to be an expert
witness or to perform an evaluation of his patient for legal
purposes" [2]. The role ambiguity and
conflict, as well as the loss of both the confidentiality essential
to a therapeutic alliance and the objectivity essential for a
forensic consultation, can be best avoided by splitting such
dual roles with the individual patient between two clinicians:
the treating psychiatrist and the forensic psychiatrist [3].
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Even with the organically impaired patient, psychodynamically driven
affective factors such as pathological grief can be major influences
on competency. When the forensic psychiatrist encounters such
a case, referral for appropriate treatment and a subsequent reevaluation
of competency is warranted [4].
References
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Spar JE, Garb AS: Assessing competency to
make a will. Am J Psychiatry 1992; 149:169-174
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American Academy of Psychiatry and the Law:
Ethical Guidelines for the Practice of Forensic Psychiatry, Adopted
May, 1987, revised ed. Baltimore, American Academy of Psychiatry
and the Law, 1989.
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Stone AA: Sexual misconduct by psychiatrists:
the ethical and clinical dilemma of confidentiality. Am J Psychiatry 1983;
140:195-197
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Bursztajn HJ, Harding HP Jr, Gutheil TG, Brodsky
A: Beyond cognition: the role of
disordered affective states in impairing competence to consent to
treatment. Bull Am Acad Psychiatry Law 1991; 19:383-388
HAROLD J. BURSZTAJN, M.D.
Cambridge, MA