Assessment of legal capacities and responsibilities and its problems

The legal and psychiatric core of this chapter is capacity in conjunction with responsibility. However, several references to Teubner's view of the nature of law will already have made it clear that, since capacity (any capacity) must be seen as a legal construct at risk of being self-referentially generated by the law without the ability to introduce relevant (real) mental constructs, it is not necessarily to be expected that its use (it is, of course a group of 'its') will bear any relation to relevant mental science constructs. Rather, what we view is a number of artefacts created by the law for its own various purposes. Of course, these artefacts go far beyond 'capacity artefacts'. Hence there are many other constructs relevant to the law relating to mental disorder applicable across a wide range of legal fields. Often more than one legal artefact will apply simultaneously to one (real) man.

It is important to tease out in more detail some of the legal constructs and questions requiring psychiatric evidence, as well as the assessment problems that they infer. In general, the absence of an explicit welfare function from any particular branch of law, for example, criminal law (at least during the trial stage of a hearing directed towards verdict), is likely to maximize the 'Teubner effect', thus emphasizing psycho-legal disparity and incongruity. Even where justice itself bears somewhat naturally on welfare, for example, in relation to psychiatric injury from negligence, there may still be unfairness arising because the law, in seeking justice, ignores psychiatric reality. The challenge for the psychiatrist is both to understand the relevant legal constructs and to accept them, so as to give psychiatric evidence directed explicitly towards them. Therefore the following discussion attempts to offer advice about how a number of specific legal constructs can be properly and effectively addressed. Hopefully, the way of thinking offered through these examples will assist the reader in relation to other constructs not dealt with explicitly.

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