Avances y exigencias de la prueba pericial en el proceso de modificación y delimitación de la capacidad de obrar: la capacidad en los trastornos mentales

In recent years, expert and judicial assessment of persons with psychic disabilities has evolved remarkably. Forensic examination is studied in depth, the potentialities of the persons are assessed, as well as their functioning in multiple areas, their motivation and their adherence to treatment; in the case of elderly people or people with dementia, the rest of the skills are evaluated in relation to their needs. In recent times, there has been a transition from the capable/incapable dichotomy to differential incapacitation, with delimitation of each competence and with a proposal of the specific support each person requires. The United Nations Convention on the Rights of Persons with Disabilities (UN, New York, 13 December 2006, in force in Spain since 3 May 2008) and subsequent legislation have led to profound changes in expert evidence, which must be more thorough and complete. The Convention alludes to expert evidence and indicates that, when required, the competent authority shall request, with due promptness, collaboration of medical examiners specialized in psychology, social work, communication, special education, and disabilities (belonging to the Judiciary or, failing that, to other institutions). For the assessment of the patient’s adaptive skills, the use of the International Classification of Functioning, Disability and Health (ICF, WHO, 2001) is proposed, especially with regard to the subsection Activities and Participation. Certain ethical guidelines, in the light of the Convention and subsequent legislation and jurisprudence, are also proposed. The most important areas of functioning with respect to self-care, legal or business acts, instrumental skills of daily life, and skills related to work, health and social areas are also summarized. Regarding the current formula of involuntary admission established in our legislation, there will not be important changes (although some requirements will be included). The possible inclusion in the reform of the concept of involuntary outpatient treatment is specially interesting. It is noteworthy that the draft of amendment of the current Spanish legislation on incapacitation establishes that it is no longer essential that the examination is performed by a doctor; moreover, involuntary outpatient treatment is included as a protective measure in addition to admission. Finally, some sentences of the Supreme Court and other judicial bodies, concerning different mental disorders, are reviewed. En los últi