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Corresponding author: calinscripcaru@yahoo.com
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illness as a loss of consciousness and understanding of consequences of self-behavioral acts, evaluated by loss of discernment. As discernment represents the main criteria of responsibility towards personal actions, this study attempts at presenting the ethical issues related to discernment evaluation from the perspective of forensic medicine. We propose a “mint” representation of the content and consequences of one’s own actions as a new criteria of evaluation, taking into account the modern principles of psychology and psychiatry.
.H\ZRUGVbioethics, discernment, psychiatric illness
In the evolution of social life, the process of legislative acculturation imposed itself as an act of social progress. The Romanian legislation UDOOLHVWRWKLVSURFHVVE\WKHUDWLÀFDWLRQRIVRPH international juridical regulations and by the elaboration of laws in agreement with the European rules. Thus, for instance, Law 487/2002, considering mental health as a condition in which the person loses the consciousness of the VLJQLÀFDQFH DQG FRQVHTXHQFHV RI KLV GHHGV D condition expressed, from a clinical and expert point of view, as the non-existence of discernment. Therefore, the lack of discernment becomes the essential criterion of a positive diagnosis of PHQWDO GLVHDVH LQ FOLQLFDO DQG VSHFLDOL]HG expertise.
The criterion of discernment as nexus of the relationship between mental pathology and the conduct of a person may run the following risks in expert’s evaluation:
· superficial evaluation, namely non-observance of the valid criteria of mental positive diagnosis of mental disease;
· ambivalent evaluation and the risk of breaching the rights of the person and of the community, as they are stipulated by law;
· amiable evaluation by abuse of medical paternalism in solving human problems strictly related to personal autonomy;
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adapting the conduct to etiquette and behavior reiteration;
· PD[LPL]LQJ RU PLQLPL]LQJ WKH ULVN RI
behavior noxiousness, that depends on the mesologic conditions of risk management and exceeds the exclusively medical criterion;
· transformation of the patient into a simple piece of evidence, by a predominant interpretation of antecedents, manner and circumstances of committing the deed;
· failure to observe the right of the person to an expert’s opinion.
Such primary, secondary or tertiary expert risks, that may trigger either an abuse of psychiatrisation or a refusal to help a person in danger, may be corrected by the competence, neutrality (independence) and consciousness of the personal limits of the expert that is going to YDOLGDWHWKHPH[FOXVLYHO\E\VFLHQWLÀFDUJXPHQWV ,Q WKLV DSSURDFK H[WHQVLRQ RI WKH VFLHQWLÀF contents of the notion of discernment - indicating the seriousness of an expert’s diagnosis by the PRGHUQSDUDGLJPRIEHKDYLRUUHSUHVHQWDWLRQ² FRYHUVPRUHHIÀFLHQWO\WKHHPSW\PHVKHVRIWKH evaluation sieve.
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BIOETHICS AND FORENSIC PSYCHIATRY
Considered since ancient times as a “right judgment”, it joins together mostly cognitive aptitudes of analysis and synthesis that, by SHUPDQHQW VRFLDOL]LQJ DFWLRQV VKRXOG EH maintained vigilant “like a sword that must always be polished not to get rusty” [1].
In the opinion of Piagee, [2] the effects of discernment are:
· a correct appreciation of the consequences of one’s deeds;
· a personal expression of one’s will and autonomy.
In the sociology of family, discernment is the primitive form of intelligence that precedes language while, for Patapievici, [3] it is a natural sense, partially hidden by representation.
As a primitive form of intelligence, discernment LV IRUPHG ZLWK WKH ÀUVW HPEU\RV RI PRUDO consciousness, starting with the stages of heteronomy (imposed norms of discrimination) up to the stages of autonomy (conscientious acceptance of the imposed norms). Distinguishing between good and evil comes before language, the morale being innitially unconscientious (good is what is approved by parents and evil what is disapproved by them).
In the absence of an ontogenetic passage from the heteronomy of discernment between good and evil to the autonomy of this discrimination, discernment is initially viewed as a criterion of mental “competence”, a key faculty of moral balance, determined by the rationality of human knowledge. Based on the inborn distinction between good and evil, as a true, determined moral sense, discernment is built up permanently E\ NQRZOHGJH VRFLDOL]DWLRQ $V DQ XQDOLHQDEOH human faculty and inescapable judgment of behavior evaluation, discernment became a FULWHULRQRIVFLHQWLÀFNQRZOHGJHRIWKHFDSDFLW\ to discriminate between what is correct and incorrect, licit and illicit, legal and illegal, etc., which evokes its pragmatic utility for discriminating between good and evil deeds. [4]
The question that rises is whether this criterion also includes affective-volitional states which, related to the cognitive ones, provide a full understanding of the behavior attitude in relation to some deed. As known, in any behavioral action, affective states are sometimes bearing a
part which exceeds cognitive discrimination, because:
· affections are the main suppliers of energy for the cognitive world;
· they provide stability to human intention and attitude, like locks that hinder or permit access to cognitive information, thus playing the part of a binding material (“conjunctive tissue”) for cognition;
· affections determine the hierarchy of the thinking process, by reducing its degree of complexity and by focusing on the essential behavioral aspects.
In this respect, discernment raises questions on the higher aptitude of representation to evaluate and terminate a behavioral attitude in various circumstances of life.
Representation, considered a natural law by WKHOLJKWRILQWHOOLJHQFHSXWLQWRPDQZDV²LQWKH opinion of Toma D’Aquino - a criterion for discriminating between what one may do and what one should avoid. E. Durkheim and, later on, S. Moscovici and, in our country A. Neculau, evidenced the major role of representation in human behavior, as a more reliable guide in man’s relations with his existential environment [1, 5].
As a fundamental and comprehensive element of mental life, representation echoes the link between existence and its essence, and the capacity to anticipate the behavioural FRQVHTXHQFHVRQHRIWKHPRVWVSHFLÀFIHDWXUHV of representation) that made man detach himself from the animal world.
Only a human being has representations he can anticipate. Thus, representation is also manifested under deviating conditions, because only man can act with premeditation.
Representation is therefore a comprehensive PDQQHURIRUJDQL]LQJWKHNQRZOHGJHRQDVRFLDO act in both upstream (by anticipation) and GRZQVWUHDP E\ MXVWLÀFDWLRQ GLUHFWLRQ WKLV simultaneity playing a primary role:
· in making sense in relation to the lived reality;
· in integrating new notions and facts into one’s behavior;
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representations conditioned human evolution, the information received from the brain being
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[6] representations are higher and comprehensive forms of social consciousness through which man builds up the reality of an event, interprets it and, as a tool of perception and orientation in daily life situations, elaborates appropriate answers. Therefore, representations involve presence of mind, having the capacity to settle
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environmental circumstances. They have a
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behavioral attitudes, their major part being played mostly during crises of the man-environment relationship. Representation joins together the external and the external answer of behavior, and thus the individual may integrate it into his own system of values, giving
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these in view, representation shows its complex function of reality awareness, of social communication, of behavioral guiding (by
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determining the type of behavioral action), of an a posteriori behavior judgment and a heuristic function of behavioral progress. Indeed, representations are incorporated into mental schemes, and into adapted or deviant behavioral patterns.
The response to any behavioral act is a reconstruction of reality through representation, integrated into a social context and an individual system of values. By means of representation, one may better understand a social reality, perceive and better guide one’s behavior in a certain situation, because the main nucleus of representation is the stable system of individual and group norms, around which representation
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real situation to be faced. Hence, representations play the part of regulating behavior and adapting its main nucleus to the concrete circumstances it is confronted with. Representation joins the psychological state to the social condition, thus becoming a quality label of personal behavior.
Representation is formed according to the development stages of the moral behavior and
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Characteristic to representations is their aptitude
to transform a concept into an action (to make it objective), and to interpret correctly the action, consecutive to the behavioral sensitivity to the contextual circumstances and to its adaptability to concrete situations of life. That is why, for S. Moscovici, representations are generated by life and impose a certain conduct, man being nothing but a copy of his representations [1, 7].
As the survival of the organism and its adequate integration to the environment depend on its capacity of representation anticipation, this becomes the key to its appropriate or inappropriate adaptation to the environment.
Representations also include techniques of
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· their denial (and motivation of the action by
fortuitous causes);
· GHQLDORIWKHHYLOFDXVHGPLQLPL]LQJLW
· denial of the victim (that deserves its fate);
· accusing the accusers [8].
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representations enable the evaluation of their advantages and disadvantages by adaptation to adequate behavior solutions. In situations of deviance, offense norms become a priori landmarks of behavior from which the reason, the level of representation and the factors negatively guiding behavior may be deduced [9].
To conclude with, we consider that representations, as behavioral patterns that regulate interpersonal relations, have a more elastic, more comprehensive and optimal capacity to rebuilt the reality by mediating the relationship between the cognitive and the affective elements. In other words, behavior comprises only social representations that include attitudes, opinions, the capacity to
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managing or not a certain situation.
Hence, for instance, pedophilia is an alteration of the representation about children (as victims
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International Journal of Medical Dentistry 19
BIOETHICS AND FORENSIC PSYCHIATRY
VXSSOLHG HQDEOLQJ D ÁH[LEOH DGDSWDWLRQ WR WKH environmental conditions for which the organism has no inborn solutions. Representations occur as mental states by intention (being their subjective version), by the capacity to adjust to any situation, to anticipate results, and by the aptitude to evaluate behavioral results. Hence, having the role of meta-cognition, they go beyond discernment. As representation cumulates the judgment of an action with the adaptation of behavior to circumstances, so that it is more useful to say - from an expert point of view - whether a person had or had not the representation of the contents and consequences of his behavioral actions than to say whether he had or not the discernment of such deeds. In other words, the aptitude to represent the contents and FRQVHTXHQFHV RI D GHHG LV UDWKHU D VFLHQWLÀF criterion of behavior evaluation which may
UHSODFH GLVFHUQPHQW ZLWK EHQHÀWV IRU H[SHUWV· analysis.
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1. Moscovici S. (2002) Social Psychology, item 2, 6. 2. Dawkins S. (2001) in Social Representation6FLHQWLÀF
and Technique Publishing House, Paris, pg. 320. 3. Scripcaru Gh. et al. (2002) Medical-Legal Psychiatry,
Polirom Publishing House.
4. Scripcaru Gh. et al. (2003) Introduction to Biolaw, Lumina Lex Publishing House.
5. Neculau A. (1995) Psychology of the Social Field, Polirom Publishing House.
6. Neculau A. (1995) Social Representations 6FLHQWLÀF
and Technique Publishing House, Paris.
7. Sica Marie J. (2001) Social Representations6FLHQWLÀF
and Technique Publishing House, Paris.
8. Doise W. (2001) in Social Representation 6FLHQWLÀF
and Technique Publishing House, Paris, pg. 237. 9. Abric C.I., (2001) Social Representations 6FLHQWLÀF
