Page 66 - IJSA, Vol. 7, No 1, 2024

International Journal of Science Annals, Vol. 7, No. 1, 2024
рrint ISSN: 2617-2682; online ISSN: 2707-3637; DOI:10.26697/ijsa

and those who, on the contrary, extend it to the entire Depressive Disorder, Authenticity and Robustness of
therapeutic weaponry available to doctors. End-of-Life Choices
Different positions also exist on the validity of the Nonetheless, the Italian legislator, precisely regarding the
treatment decision, there being those who subordinate it end of life (law n. 219/2017), has subordinated the
to the person’s ability to understand and want, and those legitimacy of the choice of treatment to the integrity of
who, on the contrary, value the cognitive, affective and the person’s ability to understand and want without hint
emotional aspects of decision making, believing that at what his judgment parameters are in order to reduce
mental disability can never be neither a valid nor a the evaluative suggestions often present, even among
reasonable reason to discriminate against people (Grahek experts, in the courtrooms (Foucault, 2020).
et al., 2018), with all that it entails on a practical level for The question is particularly complex, and some very
the rupture of the presumed ability/incapacity dichotomy, useful indications have been proposed at an international
and of that still dominant paradigm which sees legal level in this regard (American Psychiatric Association,
incapacity as the instrument to give support to those 2012; Appelbaum, 2007) to correct trivializing
people. professional styles without generalizing the complexity
The controversy that exists on the capacity, which is a of situations.
broad and complex philosophical-political construct, In Italy, the Italian Psychogeriatric Association, AIP
whose polysemy – already verifiable in ordinary (Cembrani et al., 2019), and the Istituto Superiore di
language – becomes even more evident in the juridical Sanità, ISS, did so in relatively recent times which, in an
vocabulary due to the plurality and heterogeneity of the extensive document approved by the Conference of
contexts, makes impossible to relate to each other by Regions and Autonomous Provinces (Istituto Superiore
finding a common cross matrix. di Sanita’, 2020), gave a definition of the decision-
Legal capacity (UN Convention on the Rights of Persons making capacity specifying that its evaluation falls
with Disabilities, art. 12), ability to act (law n. 219/2017, within the sphere of responsibility entrusted to clinicians.
art. 1, paragraph 5), ability to understand and want (law These are required to fulfill it with the traditional tools of
n. 219/2017, art. 1, paragraph 1 and art. 5, paragraph 1), neuropsychological investigation combined with a
inability to look after one's own interests (art. 404 of the careful functional evaluation of what the person can do
civil code), ability to make a will (art. 591 of the civil in real life situations. The evaluation is therefore
code), ability to consciously participate in the process multidimensional: after the clinical-anamnestic
(art. 70 criminal procedure code), procedural capacity interview, it focuses on the neurological/geriatric
(art. 75 civil procedure code) and ability to make a free dimensions completed by the neuropsychological
and informed decision (Constitutional Court, ordinance evaluation and by the diagnostic-instrumental tests aimed
n. 207/2018 and sentence n. 242/2019) are, thus, the so at excluding treatable secondary pathological forms.
many known and formalized faces of the capacity present The assessment involves the use of some international
in the places of law that confirm its eclectic polysemy, scales, which would allow for the selection of two
probably exacerbated by the vague links and the cohorts of patients:
overlapping of meanings that infer from the different a) those with scores on the Mini Mental State
expressions. Examination (MMSE) between 20 and 30 (Clinical
In this way, capacity has become a juridical abstraction Dementia Rating – CDR 0.5-1.5) who would have very
that is not easy to classify, also due to the extraordinary mild to mild cognitive limitations;
resistance that it shows every time one tries to give it a b) those with MMSE scores below 20 (CDR equal to or
unitary classification, fading – depending on the place – greater than 2.0, i.e. moderate to severe cognitive
in juridical capacity, in imputability, in ability to act, in impairments) who would not be able to give valid
that of standing in court, in the ability to make a will and consent and who could be further evaluated by the
in the ability to understand and want, to quote some of its administration of other neurocognitive tests, such as the
explanations of dubious significance. Mac Arthur Competence Assessment Tool-Treatment
However, it is on the ability to understand and want that (MacCAT-7), a 21-item scale (which takes 15-20
refers the law n. 219 of 2017 (Cappelli, 2021). minutes to administer) or with simpler analytical
“Regulations on informed consent and advance treatment methods such as the University of California San Diego
provisions”, whilst the Constitutional Court, in more Brief Assessment of Capacity to Consent (UBACC)
appropriate terms, has repeatedly referred to the person’s (Jeste et al., 2007).
ability to make a free and informed decision, without Naturally, one wonders, as AIP did, whether these tests
however entering into the merits of how this should be are really able of selecting people capable of giving their
explored. consent from those unable to do so, who therefore should
This is an area on which discussion continues, as there be initiated towards their legal incapacity, as
are doubts as to whether the rationality of the scientific recommended by the ISS. It should be considered that the
model is capable of exploring the quality, authenticity MMSE is not a diagnostic tool created for this specific
and robustness of decision making, with the rigor purpose and that the more sophisticated evaluation
envisaged by the method of experimental science, as a scales, such as the MacCAT-7, while exploring the
reproducible and unquestionable final judgment because domains of reasoning, planning, choice and control
it is formulated on the basis of the criteria established by (complex cognitive processes), elude other important
a universal scientific law. aspects (e.g., the social, relational, affective and

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