Mental capacity in forensic psychiatry in a comparative context

Competence or mental capacity refers to the ability to make responsible and balanced decisions. It is linked to the ethical principle of autonomy and to a collaborative and supporting doctor-patient relationship, far from the ancient paternalistic model. Mental capacity can be evaluated in clinical settings (decision making to consent to treatment or research), for the autonomy in daily life activities (financial matters, contracts), and in criminal forensic settings (competence to stand trial, criminal responsibility). Decisional capacity evaluations must always be contextualized, as skills and knowledges needed for specific competencies are context dependent and specific to the function or activity being evaluated. Unstructured evaluations have proven to be unreliable, especially when assessing patients whose cognitive functioning is neither completely intact, nor totally compromised. To overcome this issue, several tools have been developed, aimed at guiding and supporting the forensic evaluator when assessing decisional capacity. A proper balance between personal care and collective interest must be found in the application of legal instruments that can limit personal freedom.