In December 2011, developers of the Sweet 16 (while not admitting any breach of  copyright) permanently removed the cognitive impairment examination from the Internet in response to a copyright infringement accusation by the entity which manages the copyright license to the MMSE.  The Sweet 16 involves 16 elements including questions on basic orientation, items to remember, and counting sequences forwards and backwards.  Test developers provided open access to the Sweet 16 noting that copyright rules restricted the wider-known MMSE.

The MMSE was created in 1975 by Marshal Folstein, MD, and was freely available to doctors until its copyright license was actively managed in 2001.

Interestingly, most medical tests have a copyright. For example, the Framingham risk score, which accesses a patient's risk of stroke; the FRAX, a predictor of fractures; and the Katz Activities of Daily Living assessment, which measures a person's functional status all have copyrights which expire 70 years after the copyright owner's death or longer in some cases.

David Morgan Smith - Click here for more information on David Smith. 

The relevance to capacity litigation is that the language doctors use to talk about patients and record their observations may change, perhaps significantly.  According to Dr. Frances, revisions to the definitions of attention-deficit hyperactivity disorder, autism and childhood bipolar disorder (i.e., manic depression) resulted in an unintended 40-fold increase in rates of diagnosed bipolar disorder.  A patient's diagnosis is a major variable in his or her treatment.  There was a dramatic increase in prescriptions of anti-depressants over this period.

Revised definitions would not necessitate corresponding changes in legal capacity, of course.  The tests for the various levels capacity are functional in nature; they evaluate an individual's observed ability to make decisions and do things.  Good capacity assessments tell a story, and the elements of the story must support the conclusions reached.  If not, the assessment will be rejected.  Re Koch is instructive on this point.  It is hard to read the judgment and imagine that including medical terms would have made any difference at all. 

On the other hand, changes to the DSM-IV may be very relevant for expert opinions on capacity given after an individual's death, where the opinion relies heavily on medical reports and observations of treating physicians to assess an individual's capacity at a specific time during that individual's life. 

Have a great day,

Christopher M.B. Graham - Click here to learn more about Chris Graham.

Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained. 

In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.

While Greer, J. was aware that an assessment could cause the incapable some anguish, she was of the view that it was essential to have a second assessment in order that there be full and fair medical and neurological data before the court when the issues were determined.

Justin.