Doctors Speak a Different Language
I had the benefit of recently hearing prominent geriatric psychiatrist Dr. Donnelly.
She discussed various aspects of testing for mental capacity and in particular when dealing with the legal profession in seeking a medical opinion about same.
Mental capacity is a legal test – did the person have sufficient mental capacity when he or she signed the will or the transfer of land etc.?
To her credit Dr. Donnelly instructed the attending lawyers that they should specify in detail exactly what they want the doctor to tell them and in response to specific questions pose the physician.
For example, she mentioned that most lawyers do not even instruct the doctor as to the legal test for mental capacity, when most doctors, especially family physicians, really have no training or experience in understanding the legal concept, and very little training if any in testing for capacity.
If possible, it is highly preferable that the testing for mental capacity be performed by a geriatric psychiatrist in the case of the elderly, or a psychiatrist in the case of non-geriatrics
I will share aspects of her presentation upon my receipt of them in the future.
I pointed out to her and the audience that the problem is even worse than she described, in that lawyers and doctors do not even use the same words to have the same meaning.
I pointed out for example that the word acute, to a medical doctor means a sudden onset while two lawyers in the general public it means severe.
Similarly alert means awake in medical terms but to others is generally considered to be much more almost to the point of being smart
Lucid to a doctor means that the patient is oriented times three, (he or she knows who they are, where they are, and the date), whereas to the general public the word lucid again usually means much more.
I also pointed out that lawyers deal with the concept of the test in civil proceedings being on the balance of probabilities, “is it more likely than not.”?
Doctors do not understand this concept unless they are instructed by the lawyers, as to the appropriate legal test to apply when providing their medical opinion.
Dr. Donnelly agreed that doctors are typically trained and think as scientists who use the scientific method.
They do not understand the legal concept of causation, or the thin skull rule in tort law, or any other legal concepts, without the lawyer explaining the concept to the doctor.
In my almost 40 years of experience with dealing with the medical profession I can categorically state that there is often tension.
That tension can often be broken by the lawyer phoning the doctor, making it clear that the doctor will be paid for his or her time, and asking to speak with the doctor, in person if possible, in a quiet setting after hours.
The lawyer should then review the file and the opinion sought, in person before it is written, and educate the doctor in the legal concepts and test to be applied when considering the preparation of the medical opinion.
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